LETTER TO MR. PETER GARCIA FROM (Sanitized)

• Document Type: CREST
• Collection: General CIA Records
• Document Number (FOIA) /ESDN (CREST): CIA-RDP96M01138R001200010011-4
• Release Decision: RIPPUB
• Original Classification: K
• Document Page Count: 12
• Document Creation Date: December 21, 2016
• Document Release Date: November 14, 2005
• Sequence Number: 11
• Publication Date: December 8, 1980
• Content Type: LETTER

Approved Fo b.1iMWBOO 112h44a ,CIA;RDP,6M01I 7001200010011-4
Security Committee
5L'(:OM-D-380
8 DF~ ^;17
i ..
Mr. Peter Garcia
Deputy Associate Director
Division of Personnel Investigations
Office of Personnel Management
Post Office Box 886
Washington, D.C. 2,0044
We have reviewed ; 'iur 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 19.80). The 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 ever 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
ii
1. Paragraph 2 of this section should be amended by deletin;;
the period and adding the words "if it is clearly consistent with
the national security to do so."
2. Paragraph 2a(l) of this section should he 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 be 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
words "It must."
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."
OPM INTERNAL PROCEDURES
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."
2. 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
interest 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.
3
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NOTICE TO INDIVIDUALS COMPLETING FEDERAL INVESTIGATIVE FORMS
1ATTA I~MENT 2 TO FPM BUL. 732-4) _
1. The first sentence of this section should he amended by
deleting everything after the words "in the federal service" and
substituting the words "or for security clearance and access
determinations.,"
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,
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This proposal is intended t o change a number of procedures
in the control and dissemination of investigative reports compiled
by OP1?1, and in the adjudication and notification procedures. The
changes proposed will affect user agencies as well as ()P.'1 internal
procedures.
AGENCY PROCEDURES
1. OPM personnel invest igat ions , National Agency (:heck (NAC) ,
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 OP-conducted
investigation, the agency will adjudicate the case, provide
appropriate due process protection, and certify to OP11 the action
taken if it is clearly consistent with the national security to do
so
a. Favorable decisions.
(1) Background Investigation (BI):
After a tentative selection followed by a
favorable decision, and if national security p permits,
the agency shall, within ninety (90) days from receipt
of the report of investigation, notify PP11 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`l 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 he forwarded to the
requesting agency. In clear cases, only a notifi.ca-
tion that the NAC/NACI was processed clear will be
sent. Agencies that have an agreement with PPM 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 Us a result of information
in In OPM report of 'investigation, changes a tentative
decision (selection, promotion, grant clearance, etc.)
to an un'fav'orable decision, the following procedures
apply to the extent consistent with the national
security. It must provide the subject
t e spe ices fic
reasorf(s) for the decision based on the information
in the report, and allo-w 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 OPM report of investigation. IF 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 procedure
will be use :
? 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).
? 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 (s,) contains unfavorable
information, the selector will be apprised
of the information and given the opportunity
to reaffirm or reverse the selection(s).
? If -the selection is reaffirmed., the
process goes forward.
? If the selection is reversed, the
agency must follow the due process procedures
as outlined in 2.b.(1) 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 (OPH, 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.
5. 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. OPM 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 with the subject's constitutional right to confront an
accuser. The disseminator of this info mation was sub ject to personal
alai ility w. en the information was, in fact, 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 auch a pledge in obtaining the in-
formation from that source. OPM Investigators must state to all
sources that such rotention is availahle. 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 have 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 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 IV-1Tl such-information
be maintained, wit out open source corroboration. ti en supETT Tn.ormation
cannot be corroborated by OPM or the requesting agency and is therefore
deleted, the investigative report must indicate that information was
collected concerning t e subject which was subsequently deleted pursuant
to this 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 OPM investigative 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 agency from retaining OPM investigative reports or
OPM information on clear NAC/NACI cases w en it is in the interest of the
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 fi#.teen (15) year coverage.
12. Copies of reports conducted by other investigative agencies
that are in OPM's Sys?'tcm 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 permission, once tFe
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 has an interest inn a person for security clearance or
access pun oses, OPM all exempt such information from U.S.C. 2 a(c) ,
which requires release the accounting o disclosures of Privacy Act
information i the intelligence a_aenc informs OPM that such information
should be exempt pursuant to S U.S.C. 552a k) (1 .
SCOPE OF REGULATION
16. In the interests of the national security, the procedures
required by this regulation s allnot apply to any intelligence agency
that receives information from OPM for security clearance and access
purposes; provided, t no lntelli ence agency shall b-e`exem t from the
certification requirement o ar raph 7. Nothing in this re ul tion
shall be construed to limit, impair, or otherwise affect the authority
oran intelligence agency to collect and disseminate in ormation -or
security clearance and access purposes.
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NOTICE TO INDIVIDUALS COMPLETING, FEDI;RA1, INVESTIGATIVE FORMS
AUTHORITY
This information is,.provided pursuant to Public Law 93-579
(Privacy Act of 1974), December 31, 1974, for individuals completing
Federal investigative forms. The authority to collect the infor-
mation on the attached form is derived from one or more of the
following: Title 5, Code of Federal Regulations, section 5.2, Title
5, U.S. Code, sections 1303, 1304 and 3301; sections 8(b), 8(c), and
9(c) of Executive Order 10450; Title 42 U.S. Code, section 2455; and
Title 22, U.S. Code, sections 1434 and 2585.
The information you supply will be used principally as a basis
for an investigation to determine your fitness for employment in the
Federal Service or for security clearance and access determinations.
As part of such an investigation, the Standard Form 87 (Fingerprint
Chart) will be sent to the Federal Bureau of Investigation and may be
retained there. This information and information developed through
investigation may be furnished to designated officers and employees
of agencies and departments of the Federal Government for purposes of
a security clearance determination, an access determination, an
evaluation of qualifications, suitability, and loyalty to the U.S.
Government, and a determination regarding qualifications or suitability
for performing a contractual service to the Federal Government.' The
information may also be disclosed to any agency of the Federal
Government having a working relationship with regard to Office of
Personnel Management activities, to the intelligence agencies of the
Federal Government, or to others having reasons as published in the
Federal Register. In most instances a copy of the report of investi-
gation will be maintained in OPM's system of records and may be
used in future employment or security clearances and access deter-
minations. You have the right to obtain a copy ot-the report and
to request amendment to the file.
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EFFECTS OF NONDISCLOSURE
You are not required to supp y, the information on the attached
form. If you do not furnish the information requested, the processing
of your case'will be suspended, and you will receive no Further
consideration. If, you furnish only part of the information required,
the processing of your case will be attempted; however, it may he
significantly delayed. If the information withheld is Found to the
essential to pr.o