PROPOSED OPM REGULATIONS (FPM BULLETIN 732-4)

• Document Type: CREST
• Collection: General CIA Records
• Document Number (FOIA) /ESDN (CREST): CIA-RDP82M00591R000200010014-5
• Release Decision: RIPPUB
• Original Classification: K
• Document Page Count: 14
• Document Creation Date: December 16, 2016
• Document Release Date: October 14, 2004
• Sequence Number: 14
• Publication Date: December 3, 1980
• Content Type: MF

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DIRECTOR OF CENTRAL INTELLIGENCE
Security Committee
MEMORANDUM FOR: Chairman, Security Committee
STATINTL FROM:
Executive secretary
SUBJECT: Proposed OPM Regulations
(FPM Bulletin 732-4)
1. The attached response to OPM's proposed regulations for
changing its investigative procedures has been circulated to PCI
Security Committee Principals. Changes were made to portions of
the letter to accommodate OSD and NSA concerns that the reply was
not worded strongly enough. All Members now concur.
2. Recommend your signature.
STATINTL
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DIRECTOR OF CENTRAL INTELLIGENCE
Security Committee
I
Mr. Peter Garcia
Deputy Associate Director
Division of Personnel Investigations
Office of Personnel Management
Post Office Box 886
Washington, D.C. 20044
We have reviewed your proposed regulations that will modify
current procedures relating to the use of certain Office of
Personnel Management (OPM) investigatory information by OPM and
other agency personnel. We understand that you believe these
modifications are necessary by reason of the recent federal court
decision in Doe v. U.S. Civil Service Commission, 483 F. Supp. 539
(SDNY 1980) Tie Intelligence Community is aware of the Doe_
decision and its potential impact, and we are presently reviewing
our position as to the applicability of Doe to the maintenance and
dissemination of Intelligence Community security and intelligence
information. Although we have not taken a final position on-this
matter, we have, nevertheless, reached a preliminary conclusion
that the Doe decision, for a variety of reasons, should not be
construed as applying to the national security activities of the
United States.
With the foregoing in mind, our comments about your proposed
regulations concern their applicability to the maintenance and
dissemination of security and intelligence information. We believe
that your regulations should provide for the exemption of matters
relating to the national security and that such an exemption would
be upheld in the courts, even in the aftermath of Doe. Moreover,
we believe that your proposed regulations should contain a clear
disclaimer that would serve the purpose of disassociating your
regulations as much as possible from the Intelligence Community,
so that in the event these matters are over litigated, the courts
will not be tempted to find your regulations as a useful precedent.
Finally, we believe that your proposed regulations should indicate
the fact that security criteria and determinations are separate
and apart from employment criteria and determinations. For these
reasons, we propose that the following specific changes be made
in various sections of your proposed regulations:
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AGENCY PROCEDURES
1. Paragraph 2 of this section should be amended by deleting
the period acid adding the words "if it is clearly consistent with
the national security to do so."
2. Paragraph 2a(1) of this section should be amended by
adding after the word "decision" and before the word "the" the
words "and if national security permits."
3. Paragraph 2a(2) of this section should he amended by
deleting the period and adding the words "if it is clearly
consistent with the national security to do so."
4. The first sentence of paragraph 2b(l) of this section
should be amended by adding after the words "unfavorable decision"
the words "the following procedures apply to the extent consistent
with the national security." This paragraph should be further
amended by starting a new sentence immediately following the
5. Paragraph 2b(2) of this section should be amended by
adding after the words "final selection process" and before the
words "the following procedure" the words "to the extent
consistent with the national security."
1. The introductory language in Paragraph 6 should be
amended by deleting the third sentence and substituting the
following two sentences: "This practice has been held in
one instance by a court to be in conflict with the subject's
constitutional right to confront an accuser. The disseminator
of this information was subject to personal liability when the
information was, in fact, erroneous."
Paragraph 7 should be amended by adding a second
sentence to read as follows: "OPM Investigators must state
that such protection is available."
3. Paragraph 7 should be further amended by deleting the
last sentence and adding the following sentence: "If the source
refuses to withdraw the request for confidentiality, the information
from that source will not be reported, unless it Is provided to a
requesting Agency for lead purposes only and the requesting Agency
certifies that such information will not serve as a basis
for any unfavorable decision, nor will such information be
maintained, without open source corroboration."
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4. Paragraph 7 should be further amended by adding the
following sentence at the end of the paragraph: "When such
information cannot be corroborated by OPM or the requesting
Agency and is therefore deleted, the investigative report must
indicate that information was collected concerning the subject
which was subsequently deleted pursuant to this paragraph."
5. Paragraph 8 should be amended by deleting the words
"security/suitability" and substituting the words "security or
suitability."
6. Paragraph 10 should be amended by adding the following
sentence to the end of the paragraph: "This paragraph shall not
prohibit an agency from retaining OPM investigatory reports, or
OPM information on clear NAC/NACI cases, when it is in the
interests of the national security to do so."
7. Paragraph 12 should be amended by deleting the words
"employment/security" and substituting the words "employment or
security."
8. A new paragraph 15 should be added to this section to
read as follows:
When any information maintained by OPM
indicates that an intelligence agency has an
interfst in a person for security clearance or
access purposes, OPM shall exempt such
information from 5 U.S.C. 552a (c) (3) , which
requires release of the accounting of disclosures
of Privacy Act information, if the intelligence
agency informs OPM that such information should
be exempt pursuant to 5 U.S.C. 552a(k)(1).
9. A new section should be added with a new paragraph 16 to
read as follows:
SCOPE OF REGULATION
In the interests of the national security, the
procedures required by this regulation shall not
apply to any intelligence agency that receives
information from OPM for security clearance
and access purposes; provided that no intelligence
agency shall be exempt from the certification
requirement of paragraph 7. Nothing in this
regulation shall be construed to limit, impair
or otherwise affect the authority of any intelli-
gence agency to collect and disseminate informa-
tion for security clearance and access purposes.
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NOTICE TO INDIVIDUALS COMPLI:TI:NG 1~1:I)ERAL INVESTIGATIVE FORMS
(AT'TACI[MI'1V`1' 2 ZOF PN1 I3UL._ 32-4
1. The first sentence of this section should be amended by
deleting everything after the words "in the federal service" and
substituting the words "or for security clearance and access
determinations.s".
2. The third sentence of this section should be amended by
deleting the words "for employment purposes, including" and
substituting the words "for purposes of."
3. The fifth sentence of this section should be amended by
adding after the words "security clearance" and before the word
"determinations" the words "and access."
NOTICE TO INDIVIDUALS THAT A PERSONNEL INVESTIGATION
IS BEING MAINTAINED IN OPM'S SYSTEM OF RECORDS
(ATTACHMENT 3)
1. The first paragraph of this attachment should be
amended by deleting everything after the words "in the Federal
service" and substituting the words "or for security clearance
and access determinations."
2. The second paragraph of this attachment should be amended
by adding after the words "security clearance" and before the word
"determinations" the words "and access."
We realize, of course, that your proposed regulations were
primarily aimed at investigations conducted for suitability and
qualifications purposes, which is the context in which the Doe
decision was rendered. However, as presently formulated, your
proposed regulations would have considerable adverse impact upon
Intelligence Community equities. Considering our view of the
limited effect of Doe, we believe that your proposed regulations
can be narrowed as we have outlined above without violating the
constitutional interests that any person may have.
Please contact me after you have had the opportunity to review
our proposed modifications so that we may discuss this matter
further.
Sincerely,
STATINTL
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SUBJECT: Letter to Peter Garcia, OPNI
(Jane Doe v. U.S. Civil Service Commission)
Distribution!
Orig - Ad.se
1 - C/SECOM
- SECOM Subject
OM Chrono
STATINTL SECOM4 Iefs (3 Dec 80)
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Attachment I to FPM Bulletin 732-4
This proposal is intended. to",change a number of procedures
in the control and dissemination of investigative reports compiled
by OPM, and in the adjudication and notification procedures. The
changes proposed will affect user agencies as well as OPM internal
procedures.
AGENCY PROCEDL'IZF,S
1. OPM personnel investiga.t ions, National Agency Check (NAG)
National Agency Check and Inquiries (NACI), and Background Investi-
gation (BI), will be, forwarded. only to an agency security officer.
The agency security officer will maintain controls on all OPM
investigative reports within the agency on a strict "need-to-know"
basis.
2. Within ninety (90) days of receipt of an OP1-conducted
investigation, the agency will adjudicate the case, provide
appropriate due process protection, and certify to OPIl the action
taken if it is clearly consistent with the national security to do
a. Favorable decisions.
(1) Background Investigation (BI):
After a tentative selection followed by a
favorable decision, and if national security permits,
the agency shall, within ninety (90) days from receipt
of the report of investigation, notify (111,11 of its
decision by use of a Form DPI-73, and destroy the
copy of the report of investigation. Form DPI-73
(Attachment 4) "Report of Action After OP'1 Investi-
gation" will replace the Standard Form 73 and is
revised to accommodate the proposals in this
attachment.
(2) NAC/NACI:
Clear cases will not be forwarded to the
requesting agency. In clear cases, only a notiica-
tion that the NAC/NACI was processed clear will he
sent. Agencies that have an agreement with OPM to
receive the written inquiry replies in clear cases
will be required to destroy such replies within
ninety (90) days of receipt if it is clearly con-
sistent with the national security to do so.
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b. Unfavorable decisions.
(1) When an agency, as a result of information
in In OPM report of 'inves'tigation, changes a tentative
decision (selection, promotion, grant clearance, etc.)
to an unfavjorable decision, the following procedures
apply to the extent consistent with the national
security It must provide the subject the specific
reaso -s) for the decision based on the information
in the report, and allow the person a specified period
of time, fifteen (15) calendar days, to respond. An
extension of time to respond may be granted for
sufficient cause. The subject must be given an
opportunity to respond orally, in writing, or both,
and to have'the right of representation..
The agency must then consider all of the information received,
including the subject's response, if any, before a final decision is
rendered. The agency will, within ninety (90) lays, certify to
OPM by DPI-73 the action taken, and furnish to OPM a copy of any
administrative review file created. An administrative review file
should consist of a copy of all written challenges, replies, or
documentation supplied by the subject, a written summary of any oral
response, and the OPH report of investigation. I' the subject fails
to avail himself or herself of the opportunity to respond, -
documenta-tion to that effect will be provided to OPM with the DPI-73. Where
appropriate, OPM may grant an agency an extension of time beyond
ninety (90) days to complete the administrative review process.
(2) When an agency is considering more than one candidate
for a position and the report of investigation will be used for a
qualifications determination in the final selection process, to the
extent consistent with national security, the following proceTure
will be use :
9 An official other than the selecting
official will review the reports of investi-
gation for non-qualifications related infor-
mation (i.e., information that impugns the
subject's character) and remove such infor-
mation from the report of investigation before
the report is provided to the selector (selection
panel).
9 After the qualifications determination
and selection has been made, the screener will
re-review the complete report on the selected
candidate(s). If the report of investigation
is clear, the selection process will proceed.
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? If the report of investigation of the
selected candidate(?) contains unfavorable
information, the selector will he apprised
of the information and given the opportunity
,to reaffirm or reverse the selection(s).
r If-the selection is reaffirmed, the
process goes forward.
IVA.
s If the selection A reversed, the
agency must follow the due process procedures
as outlined in 2.b.(l) above.
3. The agency may provide unclassified information from the re-
port of investigation to the subject. However, if the agency desires
to release the entire report to the subject, the agency must contact
the originator of the report (OPM, FBI, DoD, etc.) and obtain per-
mission to do so on a case-by-case basis.
NOTICE TO SUBJECT
4. Revised OPM Document #14, "Notice to Individuals Completing
Federal Investigative Forms" (Attachment 2) which is provided to each
subject at the time of completion of the personnel investigation forms,
will contain specific language notifying individuals of their right
to obtain a copy of their investigative file and to request amendment
of the file.
S. OPM, upon receipt of the DPI-73 from the agency, will mail
the subject of the investigation a form DPI #,6, "Notice to Individuals
that a Personnel Investigation File is Being Maintained in OPM's
System of Records" (Attachment 3). This new form will be used to
notify the subject that an investigative file is now a part of the
System of Records at OPM and explains the procedures to be followed
to obtain a copy of the file.
OPM INTERNAL PROCEDURES
6. The Privacy Act provides for the granting of confidentiality
to sources providing information to the Government. OP"1 reports of
investigation historically have contained information from confidential
sources. This practice has been held in one instance by a court to be
in conflict wit i the us ect's constitutional ri
71 _~t to confront an
accuser. TO disseminator of this information was su jet_to ersonal
liability when the information was, in-Tact, erroneous.
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7. OPM proposes changing the reporting procedures of sources
granted confidentiality. OPM Investigators will provide a source
who requests identity protection such a pledge in obtaining the in-
formation from} that source. OP_M Investigators imust state to all
sources that such protection is ava a able. Investigators will make
every attempt to o tai or corroborate pertinent information from
that source through other-open sources. If the information is deemed
pertinent and cannot be developed from other open sources, an attempt
will be made to }lave the protected source withdraw the request for
confidentiality. If the source refuses to withdraw the request for
confidentiality, the information from that source will not he reported,
unless it is provided to a reguestingenc for lead purposes only _S_ a an the requestin agency certifies that such information weir not
serve as a basis or- any unfavorable cecision nor will sucTin imation
be maintained wit out open source corroboration. ltihen 5ucfiin ormation
cannot be corroborated b OPM or the requesting agency and sthere ore
deleted, the investigative report must in icatte tfiat i`-n ormatlon -was
collected concernin the sub ect w1iic was su seQuently cceleted pursuant
to t is paragrap .
8. OPM will continue to carefully screen each report of investi-
gation prior to release to the requesting agency to insure that all
information is security or suitability related and that prohibited
matters are not included-in the report or otherwise reflected in the
file.
9. OPM proposes changing the retention schedule of investigative
files from twenty (20) to seven (7) years. This change advances the
intent. of the Privacy Act, which requires that records are maintained
with "such accuracy, relevance, timeliness, and completeness as is
reasonably necessary to assure fairness to the individual in the deter--
mination." The seven (7) year retention will cover investigative needs
and. is consistent with retention periods as under the Bankruptcy Act,
Fair Credit Reporting Act, and other statutes.
10. OPM will retain the master copy of the investigative report.
The copy provided to the requesting agency will either be destroyed or
returned to OPM. No file will be created or maintained on clear NAC/NACI
cases. Further dissemination of an OPMinvestigative file (other than for
OPM survey or research purposes) will be strictly controlled and made
only for bona fide employment or security considerations. This paragraph
shall not prohibit an a ency from retaining OPM investigative re orts or
OPM information on clear NA NACI cases w en it is in thie interest o1-tfie
national security to do so.
11. OPM's Security Investigations Index (SIT) retention schedule
will be fifteen (15) years. The SIT will continue as a central index
of all personnel investigations conducted and will contain a record of
the agency conducting the investigation; the agency requesting the
investigation; the date of the report; and the type of investigation
conducted. The fifteen (15) year index retention period will.. provide
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leads to agency records that may contain information on the subject of
an investigation which is needed for coverage of Special Background
Investigations that provide for fifteen (15) year coverage.
12. Copies of reports conducted by other investigative agencies
that are in OPM's System of Records, as part of an investigation
conducted by OPM, will be. destroyed in the seven (7) year retention
schedule. Copies of OPM reports that are furnished to another in-
vestigative agency as part of an investigation the other agency is
conducting will be included in that agency's system of records and
will be destroyed according to that agency's published destruction
schedule. The OPM report may not be considered in an employment or
security clearance process without specific OPM pcrmnission, once Me
report becomes seven (7) years old.
13. OPM will review each agency's action through the DPI-73. The
action taken will be recorded in the subject's investigative file at OPM.
On unfavorable decisions, the DPI-73 and the copy of the administrative
review file will be postaudited to assure that appropriate due process
was available to the subject of the investigation. OPM will make appro-
priate changes to the master file copy of the report of investigation
based on information in the administrative review file.
14. OPM's Security Appraisal Program personnel will analyze the
data resulting from the DPI-73 information and administrative review
files. The information will be for use in evaluating the personnel
investigations and security programs of Federal agencies.
15. When any information maintained b OPM indicates that an intel-
ligence agency an interest in t person or security clearance or
access ur.oses, OPM stall exempt such in o rmation_ro~ U.52-Ta(c) ,
w is requires release off` tKe accou- nt n of disclosures 0 Privacy pct
in ormatian I t e intelligence agencL informs OPM thrt such in_ormat.ion
s oulc e exempt pursuant to 5 U. S. C U.S.C. 5 52Tr k) (l)
SCOPE OF REGULATION
16. In the interests of the national_ security the procedures
re aired b~this r e uTatiolT s~ia not a~1y to any yzntelli ence agency
t iat receives in ormation-from OPMtoz secure clearance ancFaccess
purposes ; rove &-d t at. no itte1l enc e ai;e:nU shaT Fie cxem t from the
i cation re quiremeent of pax a4raph 7_`Notl~irig In ttils re 7u1_ tion
cert :r
mit impair or otherwise at t the autTiorzt)r
s a e construed to li_
07-an intelli Bence a enc to collect and di se-miri