11.3.20  Personnel Records

Manual Transmittal

September 24, 2013

Purpose

(1) This manual, IRM 11.3.20, Disclosure of Official Information, Personnel Records, has been reviewed on May 31, 2013 and determined to be technically accurate. It is being reissued as a non-procedural update and includes web link updates and links to citation references.

Material Changes

(1) Editorial changes have been made throughout to update IRM/statute/organizational references and terms. Web and citation references were added/updated throughout to make the text easier to research in electronic media.

(2) System of record (SOR) Treasury/IRS 36.005, Medical Records, has been withdrawn and is now covered by OPM/GOVT-10, Employee Medical File System Records. Changes made to sections 11.3.20.3.1(4), 11.3.20.15(5), 11.3.20.15.1(4), 11.3.20.15.2(2), 11.3.20.15.3(2), 11.3.20.15.3(3) and 11.3.20.15.4(2).

(3) SOR Treasury/IRS 36.008, Recruiting, Examining and Placement Records, has been withdrawn and is now covered by OPM/GOVT-5, Recruiting, Examining, and Placement Records. Changes made to sections 11.3.20.3.1(4), 11.3.20.5(2), Note within 11.3.20.11.7(3), 11.3.20.24(2) and the Example in 11.3.20.28(2).

(4) SOR Treasury/IRS 36.009, Retirement, Life Insurance and Employee Benefits Records, has been withdrawn and is now generally covered by Treasury/IRS 36.003, General Personnel and Payroll Records. The records in 36.009 duplicate the generic descriptions in Treasury/IRS 36.003. Changes made to sections 11.3.20.3.1(4), 11.3.20.15.1(4), 11.3.20.15.2(2) and 11.3.20.14(3).

Effect on Other Documents

This material supersedes IRM 11.3.20, Disclosure of Official Information, Personnel Records, dated June 13, 2008.

Audience

All Operating Divisions and Functions.

Effective Date

(09-24-2013)

Related Resources

The Governmental Liaison and Disclosure intranet home page can be found at:
http://discl.web.irs.gov/GLD.asp



Gregory T. Ricketts
Acting Director, Governmental Liaison and Disclosure

11.3.20.1  (06-13-2008)
Background

  1. Personnel records were subject to disclosure requirements prior to the enactment of the Freedom of Information and Privacy Act.

  2. The Office of Personnel Management (OPM) promulgated rules and regulations concerning records required for personnel management. Such rules and regulations granted individuals access to most records pertaining to themselves.

  3. The exclusive representative (NTEU in the case of the IRS) is granted access to certain information by virtue of its rights defined under 5 U.S.C. § 7114(b)(4), formerly Section 10(e) of Executive Order 11491, as amended.

  4. The OPM rules and regulations are contained in several Parts of Chapter 1, Subpart B, of Title 5, Code of Federal Regulations (CFR).

  5. The CFR instructs agencies to maintain records in confidence and to release personnel records only to those individuals within or outside the agency who have a definite need for the information.

  6. This section provides guidelines for the disclosure of particular records or categories of records maintained by Agency-Wide Shared Services (AWSS) or division employees with personnel responsibilities and certain records controlled by OPM.

  7. Personnel/human resources issues are handled by the appropriate AWSS function.

  8. For simplicity, throughout this text, AWSS Personnel is used to denote the responsible function for personnel/human resources issues.

11.3.20.2  (05-27-2005)
Privacy Act and Freedom of Information Act Guidance

  1. Title 5, Code of Federal Regulations (CFR) contains guidance and instructions on the disclosure of personnel records.

  2. Disclosure provisions are contained in the following Parts of Chapter 1, Subchapter B, in the above referenced document:

    • Part 293 and 297 - Privacy Act Procedure and Instructions relative to Personnel Records

    • Part 294 - Freedom of Information Act instructions

11.3.20.3  (06-13-2008)
Privacy Act

  1. The Privacy Act provides access by the individual to whom the record pertains and limits access by others. See IRM 11.3.14, Privacy Act General Provisions, for additional information.

  2. The Privacy Act provisions are applicable to those personnel records which are maintained by a personal identifier and contain personal information.

  3. The IRS personnel systems of records are patterned after those of OPM. The records are grouped into systems of records (SORs) according to similar purposes for establishing the files, similar handling of records, and similar types of records.

  4. Most personnel records are subject to the Privacy Act as they are maintained by employee name or Social Security Number (SSN) and are therefore in one or more of the personnel systems of records.

  5. The OPM also has Privacy Act responsibilities for certain personnel records that are maintained by Federal Agencies. See IRM 11.3.20.3.1(5) below which defines these shared responsibilities. The OPM's Privacy Act rules and regulations are found in 5 CFR § 297.

  6. The system manager for most IRS personnel records is AWSS management. Access to Privacy Act records is made through the office maintaining the records.

  7. Access to those records not under the control of AWSS can be requested from the system managers or designees listed under each system of records in the Notice of Systems of Records.

11.3.20.3.1  (09-24-2013)
Privacy Act Systems of Records

  1. The Privacy Act requires Notices of Systems of Records to be published in the Federal Register. The Internal Revenue Service's (IRS) Notices of Systems of Records are published as a part of the Department of the Treasury's publication.

  2. A specific coding designates the systems of records as belonging to Treasury and IRS. This coding is part of the title of each system of records. The coded title for each system is Treasury/IRS followed by a five digit number that has a period after the second digit. Each of the first two digits indicates the functional organization and the division which controls the records.

    Example:

    The systems of records controlled by AWSS functions all have a "3" as the first digit. The systems of records controlled by AWSS all have a "6" as the second digit. The last three digits following the period designate the specific system of records controlled by AWSS.

  3. A title for the system is also used with the coding structure.

    Example:

    Treasury/IRS 36.001, Appeals Grievances and Complaints Records would indicate that the records are under the control of Treasury, IRS, AWSS function and Personnel Services and that appeal grievances and complaints are in this system.

  4. The three personnel systems of records under the control of AWSS Personnel are the following:

    • Treasury/IRS 36.001, Appeals Grievance and Complaints Records

    • Treasury/IRS 36.002, Employee Activity Records

    • Treasury/IRS 36.003, General Personnel and Payroll Records

  5. A similar coding is used by each department or agency in the Federal Government. The Office of Personnel Management (OPM) has control over certain personnel records maintained by other Federal agencies. The OPM uses a coding system which designates whether the particular system contains records of Federal employees or only OPM employees. This coding is accomplished by the following method:

      • OPM/GOVT-1, General Personnel Records , is a system of records controlled by the OPM and contains records about Federal employees

      • OPM/Internal-7, Complaints and Inquiries Records, is a system of records controlled by OPM and contains records on OPM employees only

  6. The OPM also has a third type of system of records. This third type contains records on all Federal employees that are both controlled and maintained by OPM. The coding for these systems uses the words OPM/Central.

    Example:

    OPM/Central-1, Civil Service Retirement and Insurance Records.

  7. There are two other Federal agencies which have government-wide systems:

    • The Equal Employment Opportunity Commission controls and maintains the EEO complaint records maintained by agencies in the system EEO/GOVT-1, EEO Complaint Records and Appeal Records

    • The Department of Labor controls and maintains records on all Federal employees who have filed Workers Compensation claims. These records are in entitled DOL/GOVT-1, Office of Workers Compensation Program, Federal Employees Compensation Act File

11.3.20.4  (06-13-2008)
Conditions of Disclosure Under the Privacy Act

  1. The Privacy Act of 1974 (5 U.S.C. § 552a(b)) limits access to a record without the prior written consent of the individual to whom the record pertains. It lists Conditions of Disclosure where a record may be disclosed without prior written consent of the individual. Those conditions are explained further in the Privacy Act section of this IRM. When tax records protected by IRC § 6103 are involved, the requirements of that section take precedence over the generalized provisions of the Privacy Act. See IRM 11.3.20.4.1 through 9 below where these subsections outline the most common conditions that Disclosure personnel will encounter.

11.3.20.4.1  (12-31-2001)
(b)(1)

  1. Condition of disclosure (b)(1) -internally to officers and employees of the agency who have a need for the information in the performance of their official duties.

11.3.20.4.2  (05-27-2005)
(b)(2)

  1. Condition of disclosure (b)(2) -the release of a record as required by the Freedom of Information Act. The existence of an actual FOIA request is a prerequisite for application of this provision.

11.3.20.4.3  (12-31-2001)
(b)(3)

  1. Condition of disclosure (b)(3) -the routine use provision.

  2. This condition allows for the disclosure of a record for a use which is compatible with the purpose for which the record was collected.

  3. A routine use generally involves disclosure to another agency, State or local government or other organization, and must be specified in the Notice of Systems of Records.

  4. Under this condition, disclosures are also made to unions recognized as exclusive bargaining representatives pursuant to 5 U.S.C. § 7114.

11.3.20.4.4  (05-27-2005)
(b)(5)

  1. Condition of disclosure (b)(5) -for statistical research or reporting purposes. The record may only be provided in a format that is not individually identifiable.

11.3.20.4.5  (06-13-2008)
(b)(7)

  1. Condition of disclosure (b)(7) -for civil and criminal law enforcement activities. This condition of disclosure is applicable when Federal, State, and local governments request information for investigations of welfare fraud, tax matters, unemployment compensation and other civil or criminal law enforcement activities.

  2. The requirements for granting a (b)(7) request are specific. The Disclosure Manager and the AWSS office should jointly determine whether the request meets the four requirements of the (b)(7) condition as follows:

      1. The request must be made in writing

      2. The request must specify the particular portion of the record(s) desired on a given individual(s)

      3. The request must state that the information is for a civil or criminal law enforcement activity which is authorized by law, including investigations related to such activities, and must specify the law enforcement purpose for which the record is sought and

      4. The request must be made by the head of a Federal, State or local agency or an appropriate official of the agency. The head of a city or county department, District Attorney, Chief of Police, Chairperson of a county board or committee, tax commissioner or deputy tax commissioner among others, would be considered an appropriate official. If the individual executing the request is below this level, contact may be made with the requester to obtain either a new request from the appropriate level or a statement which authorizes the requester to execute such requests

  3. When the request involves payroll data, the request is sent to the appropriate Transactional Processing Center (TPC) with responsibility for the employee's function. Disclosure personnel may consult the Public Information Listing to determine the appropriate TPC to contact. See IRM 11.3.13.9.12.1, Public Information Listing, for the PIL web site access procedures.

    1. Note:

      In the case of a subpoena and/or summons for payroll records, consult the chart attached to Delegation Order 11-2 and IRM 11.3.35, Requests and Demands for Testimony and Production of Documents, for additional guidance.

  4. The IRS has adopted the policy of allowing the IRS function processing the (b)(7) request to also authorize the (b)(7) release. The level of authority official should be specified in functional procedures.

11.3.20.4.6  (12-31-2001)
(b)(8)

  1. Condition of disclosure (b)(8) -when there is a compelling circumstance affecting the health or safety of the individual. This provision is strictly interpreted and the release is limited to emergency situations.

11.3.20.4.7  (05-27-2005)
(b)(10)

  1. Condition of disclosure (b)(10) -to the Comptroller General or the Government Accountability Office in the performance of its duties. This condition includes any GAO audit or request for a Comptroller General decision where information from a record, subject to the Privacy Act, is disclosed. See IRM 11.3.23, Disclosure to the General Accounting Office (GAO).

11.3.20.4.8  (06-13-2008)
(b)(11)

  1. Condition of disclosure (b)(11) -a disclosure pursuant to an order of a court of competent jurisdiction. See IRM 11.3.20.4.9 below for specific instructions on disclosures under this condition.

11.3.20.4.9  (05-27-2005)
Disclosure Under Court Order

  1. Those documents controlled by OPM, such as the right (long term) side of the Official Personnel Folder (OPF), are disclosed in accordance with the instructions in 5 CFR §§ 297.402, and 297.403.

  2. A court order, demand (subpoena or summons) or an order from an administrative body, such as a State unemployment compensation board, which requires testimony or the production of documents by an IRS official will be processed in accordance with procedures for subsequent approval by the appropriate official authorized by Delegation Order 11-2.

  3. In accordance with the Civil Service Reform Act of 1978, Title VII, Section 7132, Part (a)(2):

    " No subpoena shall be issued under this section which requires the disclosure of intra-management guidance, advice, counsel, or training within an agency or between an agency and the Office of Personnel Management."

  4. Disclosure personnel should review IRM 11.3.35, Requests and Demands for Testimony and Production of Documents, for further guidance on processing requests for personnel and payroll records.

  5. After an employee has left IRS for any reason, the OPF should be returned within 90 days to OPM for maintenance and retention. After the OPF has been returned, OPM is the appropriate agency to respond to subpoenas or other requests for personnel records. OPM requires a subpoena or court signed by a judge. Subpoenas should be directed to:

    The Office of General Counsel
    Office of Personnel Management
    1900 E Street, NW
    Washington, DC 20415

11.3.20.5  (09-24-2013)
Exemption from Disclosure Under the Privacy Act

  1. The Privacy Act provides that certain records may be exempt from access and amendment.

11.3.20.5.1  (09-24-2013)
Exemption (d)(5)

  1. The (d)(5) provision of the Privacy Act exempts from disclosure information compiled in anticipation of a civil action or proceeding.

  2. This provision may be used to exempt information prepared for use in litigation and otherwise protected from release by the Freedom of Information Act or rules of civil procedure.

11.3.20.5.2  (09-24-2013)
Exemption (k)(5)

  1. The (k)(5) exemption is for investigatory material compiled solely for the purpose of determining suitability, eligibility, and qualifications for Federal civilian employment or access to classified material.

  2. The exemption only applies to that information which would reveal the identity of a source of the information who was provided an express promise of confidentiality.

  3. The (k)(5) exemption also applies to a source who supplied information prior to the effective date of the Privacy Act (September 27, 1975) under an implied promise of confidentiality.

11.3.20.5.3  (09-24-2013)
Exemption (k)(6)

  1. The (k)(6) exemption is for testing or examination materials used solely to determine individual qualifications for appointment or promotion in the Federal service.

  2. This exemption is claimed because the disclosure of the testing and examination materials would compromise the objectivity or fairness of the examination process.

11.3.20.6  (05-27-2005)
Accounting for Disclosures

  1. The Privacy Act requires each agency to keep an accurate accounting of the date, nature, and purpose of each disclosure of an individual's record to any person or to another agency and the name and address of the person or agency to whom the disclosure is made. See IRM 11.3.19, Privacy Act Accountings for Disclosures, for specific information.

  2. Some disclosures of Privacy Act information are exempt from the accounting requirement. These include disclosures made under section (b)(1) and (b)(2) of the Privacy Act as well as those made to the individual or another recipient at the individual's request, and those made expressly exempt under IRC § 6103(p)(3)(A).

11.3.20.7  (05-27-2005)
Freedom of Information Act (FOIA)

  1. The Freedom of Information Act provides access to Federal Government records by the public. The public includes:

    • Federal employees

    • Employee organizations with exclusive bargaining representation rights and

    • All other individuals or organizations seeking access to government records

  2. This Act is applicable to all Federal Government personnel documents. There are, however, exemptions which allow the denial of certain documents or parts of documents as they pertain to personnel matters.

  3. The OPM also has FOIA responsibilities for personnel records that are maintained by agencies. These responsibilities are detailed in each of the sections describing the various records. Processing FOIA requests will be consistent with OPM regulations at 5 CFR §§ 293 and 297, and with IRM 11.3.13, Freedom of Information.

11.3.20.7.1  (05-27-2005)
Commercial Solicitation

  1. The OPM regulations at 5 CFR § 294.103 provide guidance on how commercial solicitation firms can obtain access to public information items on employees.

  2. When a commercial solicitation firm requests information on employees, the public information items, to the extent requested, are to be provided.

11.3.20.7.2  (06-13-2008)
Public Information Listing

  1. There are six items of information which have been designated by the OPM as public or official information which is available from both the Official Personnel Folder (OPF) and employee performance file system folders, their automated equivalent records, and from other personnel record files that constitute an agency record within the meaning of the Freedom of Information Act.

  2. For the purpose of providing the six items of public information specified in 5 CFR § 293.311, requests for the Public Information Listing do not have to be processed pursuant to FOIA unless the requester specifically requests processing under the FOIA. See IRM 11.3.13.9.12.1.

  3. Public information for employees in sensitive positions as deemed by OPM are from the Public Information Listing. See IRM 11.3.13.9.12.1 for more details. The Public Information Listing available through Disclosure, also does not contain the names of employees who have been assigned an approved IRS pseudonym. See IRM 11.3.13.9.12.1(6) for more information.

11.3.20.7.3  (06-13-2008)
Disclosure to an Exclusive Representative

  1. Any materials requested by the exclusive representative (NTEU in the case of the IRS) solely under the Freedom of Information Act must be evaluated for disclosure in accordance with that Act.

  2. Careful consideration, however, must be given to any specific exemptions to disclosure that occur under the Civil Service Reform Act.

    Example:

    The Civil Service Reform Act exempts disclosure of intra-management guidance, advice, counsel or training. If the union requested a copy of a labor relations training course pursuant to the FOIA, the request could be denied by virtue of FOIA exemption (b)(3) in conjunction with 5 U.S.C. § 7114(b)(4)(C). See IRM 11.3.20.8 below.

  3. Requests for information from the union under the FOIA are directed to the Disclosure Manager.

11.3.20.8  (05-27-2005)
Disclosure Under 5 U.S.C. § 7114

  1. As part of the agency's and exclusive representative's (NTEU in the case of the IRS) duty to negotiate in good faith, the Civil Service Reform Act of 1978 (Title VII, Section 7114, Part (b)) delineates the agency's obligation to furnish to the exclusive representative involved or its authorized representative, upon request and, to the extent not prohibited by law, data:

    1. Which is normally maintained by the agency in the regular course of business;

    2. Which is reasonably available and necessary for full and proper discussion, understanding, and negotiation of subjects within the scope of collective bargaining; and

    3. Which does not constitute guidance, advice, counsel, or training provided for management officials or supervisors relating to collective bargaining.

  2. Requests from the union under the collective bargaining rights are directed to the Labor Relations (LR) office of AWSS or other designated LR function.

11.3.20.9  (06-13-2008)
Disclosure Pursuant to IRC § 6103(l)(4)

  1. Tax returns and return information may be utilized in disciplinary/adverse actions, suitability determinations and other personnel decisions. These include unemployment compensation and workers compensation cases filed by IRS employees or former employees where IRS is the employer involved. Also included are EEO cases or Merit System Protection Board (MSPB) cases where IRS is one of this named parties.

  2. Such use may prompt an employee, former employee, or legal representative thereof, to seek access to such records, or it may permit the Service to disclose returns and return information to advance or protect the interests of the United States.

  3. Any employee called upon to release files under IRC § 6103(l)(4) should exercise extreme caution. Coordination with the local Disclosure Manager is recommended.

11.3.20.9.1  (06-13-2008)
Disclosures Permitted by IRC § 6103(l)(4)(A)

  1. IRC § 6103(l)(4)(A) authorizes disclosure of relevant and material returns and return information, upon written request, to an employee or former employee or their authorized legal representative for use in a personnel action or proceeding. Release of the employee's own tax information is governed by IRC § 6103(c) and IRC § 6103(e). IRC § 6103(l)(4)(A) is also relevant to persons and their legal representatives whose rights are or may be affected by an administrative action or proceeding under 31 U.S.C. § 330. These actions relate to conference and practice matters under the jurisdiction of the Office of Professional Responsibility (OPR).

  2. Authorized legal representative refers to every person (single human being) designated by the unit employee and who has signed a form letter which, among other things, acknowledges his/her awareness of the disclosure ramifications and penalties associated with accessing confidential tax information. Such form letter is generally attached to letters proposing a disciplinary suspension or adverse action and advises the employee of his/her right to request a copy of the evidence file. The signature on the form letter is necessary even where the methodology of taxpayer identity protection includes using coded identities and a key to the code. See IRM 6.432.1, Reduction in Grade and Removal Based on Unacceptable Performance - Policies, Authorities, Requirements, and Procedures , and IRM 6.751.1, Discipline and Disciplinary Actions - Policies, Responsibilities, Authorities, and Guidance, for more information including sample form letters.

    1. Note:

      Those persons who come into contact with the tax return or return information contained in an evidence file as supervisors or reviewers of the designated representative(s) need not sign the form letter.

      Note:

      The Union, as an entity, is not the legal representative of a bargaining unit employee. Only specifically authorized-designated Union employees who have signed the form letter may receive information from IRS under IRC § 6103(l)(4)(A).

  3. Release of the evidence file (material relied upon) in unsanitized form may be made to the employee and/or authorized representative if a written request is made under IRC § 6103(l)(4)(A) and the request is approved by the appropriate official. Equitable treatment claims by requesters do not qualify as "material relied upon" so IRC § 6103(l)(4) will not allow disclosure of such tax information.

  4. When a proper IRC § 6103(l)(4)(A) request is received, AWSS and/or the appropriate functional component will determine whether the records meet the relevant and material criteria of the statute.

    1. The Disclosure Manager will be available to give advice and assistance, if needed

    2. A recommendation is then made to the official authorized to release the records under Delegation Order 11-2

  5. Generally, only such information that has been relied upon by the Service in the proceeding should be disclosed.

    Example:

    The employee or his/her legal representative may normally have access to audit administrative files which were prepared by the employee only if they are being used by the Service as the basis for the action.

    1. If additional files are requested that are material and relevant to the issue in controversy in the personnel action or proceeding, IRC § 6103(l)(4)(A) will also permit disclosure of these files. IRC § 6103(l)(4)(A) does not compel disclosure of any tax information.

    2. The administrative file must clearly reflect what tax information, if any, has been disclosed. As a safeguard, taxpayer identities should be coded by the releasing official (i.e., Taxpayer A, Taxpayer B, etc.) and a key which includes the actual taxpayers' identities should be attached to the letter to the employee. The body of the letter itself should contain a strong admonition against disclosure of returns or return information.

  6. When dealing with returns or return information in proposing disciplinary suspensions or adverse actions, the following practical steps should be followed:

    1. Prepare the proposal letter with all return information coded

    2. Attach a key to the coded information and include a strong admonition against disclosure of returns or return information in the body of the proposal letter

    3. The evidence file should be coded to correspond to the key attached to the proposal letter

    4. If the employee or his/her duly authorized representative executes a request for disclosure under IRC § 6103(l)(4)(A), and the written request is approved, the employee's representative may be provided the returns or return information

    5. If the disciplinary action is appealed to arbitration, to the Equal Employment Opportunity Commission (EEOC), or to the Merit Systems Protection Board, the appeal or grievance file may be transmitted to the arbitrator, the EEOC, or the MSPB with returns or return information, to the extent relevant and necessary

  7. The employee and his/her representative should be advised that the tax returns and return information provided pursuant to a request made under IRC § 6103(l)(4)(A) are confidential and may be used solely in preparation for, or in, the action. The employee and his/her representative should also be advised of the criminal penalty and civil liability provisions of IRC §§ 7213, 7213A, and 7431, respectively, regarding unauthorized inspection or disclosure. The representative (e.g., union officer) may not use the information for other cases. Use can only be made relevant to the actual case for which the information was disclosed. See IRM 6.751.1, Discipline and Disciplinary Actions - Policies, Responsibilities, Authorities, and Guidance for further guidance and sample forms.

  8. Disclosures of tax information made pursuant to IRC § 6103(l)(4)(A) must be accounted for in accordance with IRC § 6103(p)(3)(A).

  9. Form 5466-B,Multiple Record of Disclosure, should be used for this purpose. For disclosures under IRC § 6103(l)(4)(A), the Agency Code should be 500 and the Purpose Code should be 30. A subsequent disclosure during an action or proceeding by the employee or former employee or his/her duly authorized legal representative does not require a separate accounting. For additional information in preparing this form, see IRM 11.3.37,, Recordkeeping and Accounting for Disclosures.

  10. In personnel matters, employees may not release confidential tax information to the Union or their representative outside of the provisions of IRC § 6103(l)(4). It is immaterial whether the Union official or representative is an IRS/Treasury employee. IRC § 6103(h)(1) does not cover such a release.

  11. In matters falling under OPR's conference and practice jurisdiction (See IRM 11.3.20.9.1(1) above), the standards of this IRM as well as statutory and procedural rules will be used to respond to requests.

  12. TIGTA has its own procedures relative to IRC § 6103(l)(4)(A) but uses form letters like those discussed in IRM 11.3.20.9.1(2) above.

11.3.20.9.2  (06-13-2008)
Disclosures to Treasury Permitted by IRC § 6103(l)(4)(B)

  1. IRC § 6103(l)(4)(B) permits disclosure of returns and return information to Treasury officers and employees for use in a personnel action or proceeding, or in preparation for such action or proceeding, to the extent necessary to advance or protect the Government's interests. Such proceedings encompass those described in IRM 11.3.20.9.1(1) above, but the rest of this subsection focuses on OPM procedures in particular.

  2. This provision permits the IRS to disclose returns and return information to OPM when needed in a personnel action of any kind. OPM's reclassification of position grade levels is an "administrative action" within the meaning of IRC § 6103(l)(4) , and OPM's desk audits are part of the preparation for an OPM reclassification action.

  3. Although IRC § 6103(l)(4)(B) allows the disclosure of returns and return information to OPM, this provision does not condone blanket disclosures of returns and return information to OPM. Need and relevance must be considered.

  4. When returns and return information are considered for use in a personnel action or in preparation for such an action, the need for confidentiality must be balanced against the need for specificity of information. To attain the proper balance, these guidelines should be followed:

    1. To the extent possible, returns and return information should not be disclosed in administrative personnel actions before OPM;

    2. If it is determined that it is necessary to disclose returns and return information to OPM, to the extent possible, portions of the returns and return information rather than the entire document should be disclosed;

    3. Identifying information should be deleted from returns and return information to the extent disclosure of this information is not necessary;

    4. OPM may not remove returns and return information from IRS premises unless it is determined that they have established a compelling need to do so;

    5. OPM may not include returns and return information in their reports without approval from the IRS. When the appropriate management as stated in Delegation Order 11-2 has determined that OPM has established a compelling need to include such information in their reports, they may authorize OPM's use for this limited purpose. Under no circumstances will OPM be permitted to include taxpayer identifying information in their reports;


      1) When the appropriate management as stated in Delegation Order 11-2 has determined that OPM has established a compelling need to include such information in their reports, they may authorize OPM's use for this limited purpose
      2) Under no circumstances will OPM be permitted to include taxpayer identifying information in their reports;

    6. Officers and employees of OPM receiving or having access to returns and return information should be cautioned relative to the criminal penalty and civil liability provisions of IRC §7213, IRC §7213A, and IRC §7431, respectively, for unlawful access or disclosure of tax information. In this regard, officers and employees of OPM should be informed that returns and return information retain their status as returns and return information even if taxpayer identifying information is removed;

    7. The disclosure of certain returns and return information such as grand jury or tax treaty/convention information is governed by provisions in addition to IRC § 6103. Such information may be disclosed only in accordance with both applicable provisions. IRM 11.3.27, Disclosure of Returns and Return Information to Grand Juries, discusses confidentiality of grand jury information; IRM 11.3.25, Disclosure to Foreign Countries Pursuant to Tax Treaty, deals with disclosures to foreign countries and tax treaty/convention information.

  5. As necessary, AWSS will be available to assist the official authorized to release records under Delegation Order 11-2, and the employees being interviewed, in evaluating OPM's need for returns and return information. The Disclosure Manager will also be available to provide advice and assistance.

  6. Disclosures of tax information made pursuant to IRC § 6103(l)(4)(B) are exempt from the accounting requirements of IRC § 6103(p)(3)(A) and the Privacy Act.

11.3.20.10  (06-13-2008)
Processing Requests

  1. The disclosure responsibilities for the release of personnel information are shared between the Disclosure Manager and AWSS. There may be instances where a functional area Transactional Processing Center will also be involved with the disclosure of certain information.

  2. AWSS will process, in accordance with the Privacy Act:

    1. Informal requests by employees relating to their own records

    2. Routine requests which can be processed pursuant to OPM rules or negotiated labor agreements and

    3. Matters which traditionally fall within the area of AWSS activities, provided that tax returns or return information subject to IRC §6103 are not involved

  3. AWSS will provide timely assistance to Disclosure Managers on requests subject to Disclosure Manager processing, such as records search, copying services, and recommendations on the AWSS aspects of releasing or withholding records.

  4. The Disclosure Manager will process requests citing the Freedom of Information Act or Privacy Act involving tax returns or return information subject to IRC § 6103, and any requests involving novel or complex disclosure problems.

  5. The precise distinction between a routine matter falling within AWSS responsibilities and a novel or complex disclosure problem requiring processing by the Disclosure Manager may be locally determined by mutual agreement.

  6. Matters which require the review, recommendation or other involvement of functional areas other than AWSS and Disclosure, should normally also require the concurrence of the Disclosure Manager (e.g. accounting for disclosure).

  7. The Disclosure Manager will be available to assist and advise AWSS on disclosure matters and will have a general review responsibility as necessary to ensure the head of office that AWSS operations are consistent with Disclosure requirements.

  8. Requests which require payroll information should be worked by AWSS. If the IRS employee whose payroll records are requested consents to release and salary information is all that is needed by a third party, the appropriate system or web site should be used.

  9. Requests from the exclusive representative under its rights defined in 5 U.S.C. § 7114(b)(4) should be forwarded to the Labor Relations office.

  10. Requests from the exclusive representative under FOIA should be handled by Disclosure in coordination, as appropriate, with the servicing Labor Relations office of AWSS.

11.3.20.11  (05-27-2005)
Promotion/Selection Files

  1. The term "Promotion Files" is used in this section to include all files established for the purpose of selecting individuals for vacant positions.

  2. The promotion file is maintained according to the vacancy announcement number or Promotion Certificate Number. While the information in the file may be found in other systems of records, the promotion file itself is not subject to the Privacy Act.

  3. The promotion file includes those documents used or initiated in the selection process.

11.3.20.11.1  (09-24-2013)
Documents in the File

  1. For each individual, the file may contain:

    • An Application for Reassignment/Promotion form

    • A Promotion Appraisal form

    • A Ranking Panel Evaluation Sheet

    • OF-612 or resume

    • USAJOBS resume

    • Examples of employee's work products

    • Interview sheets

    • Supervisory Potential evaluation

    • Statement of Accomplishments

    • Memorandum of Interest; and/or

    • Special application forms

  2. Information which would compromise the objectivity or validity of the selection process must not be released. This would include test items and answer keys, crediting plans, or ranking criteria and may include interview plans and information on other selection methods. The policy on release of crediting plans may be found on Strategic Human Resources web site at: http://hco.web.irs.gov/policies/intrmguide/HCOPolicy2.html

    Note:

    Each employee entrusted with such information has a positive duty to know what should be released and what should not, and to act accordingly.

11.3.20.11.2  (12-31-2001)
Maintenance of the File

  1. The promotion file is maintained in the AWSS Office for two years.

  2. The documents in the file are established for a particular selection and should not be reused for any other personnel action.

  3. However, the Job Element Appraisal , prepared by an employee's supervisor and which remains current for six or twelve months, is the exception. The copy of the Job Element Appraisal can be used in any promotion action during its currency.

11.3.20.11.3  (05-27-2005)
Disclosure to the Exclusive Representative Pursuant to 5 U.S.C. 7114

  1. If a grievance is filed pursuant to the negotiated agreement between the parties, a grieving employee as well as the steward representing the grieving employee, upon request, will be provided the evaluative materials used by the ranking panel in rating eligible employees.

  2. The local chapter may also request a copy of the complete promotion file used in filling a bargaining unit position in anticipation of filing a grievance.

  3. The local chapter is also provided a copy of the promotion certificate previously given to the selecting official, identifying the selected candidate(s).

    Note:

    This pertains only to bargaining-unit positions.

  4. In order to be in concert with the Privacy Act and the FOIA, the evaluative materials are to be edited, deletion of sensitive and damaging personal information, prior to their release.

  5. The editing should only delete such items as:

    • Mental and/or physical health

    • Allegations of employee misconduct

    • Training course grades

    • Date of birth

    • Social Security Number and

    • Marital status

  6. Information that pertains solely to a person's Government service may be disclosed, e.g.:

    • Tenure

    • Salary

    • Grade

    • Position title

    • Work schedule and

    • Agency-sponsored training and awards received

  7. Names of employees may also be disclosed.

  8. Requests from the Union under the collective bargaining rights are directed to the Labor Relations office.

  9. To the extent tax information of third parties is included in these files, the grievant's access, as well as the grievant's representative's access, will only be in accordance with IRC § 6103(l)(4)(A). See IRM 11.3.20.9.1 above.

11.3.20.11.4  (05-27-2005)
Disclosure to Employees

  1. Employees, acting independently of the exclusive representative, do not receive the same amount of information as the exclusive representative when requesting information on a bargaining unit position. See IRM 11.3.20.11.3 above.

  2. Additional deletions shall be made to protect the other employees' information:

    • Names

    • Dates of training

    • Schooling and

    • Particular assignments

    Note:

    Pronouns and other similar information should also be deleted.

  3. Sufficient information should also be provided to permit an employee to grieve the file.

  4. These procedures are also applicable for all non bargaining unit promotion files, regardless of the Union status of the employee requesting the file.

  5. If request is pursuant to the FOIA, process as a FOIA request. See IRM 11.3.13, Freedom of Information Act.

11.3.20.11.5  (05-27-2005)
Disclosure to the Public

  1. When a member of the public, (aside from the exclusive representative exercising its 5 U.S.C. § 7114 rights) seeks a promotion file, only that information which shows that the file was processed in accordance with merit principles, should be disclosed. The Union is treated like a member of the public when it submits a FOIA request.

11.3.20.11.6  (05-27-2005)
Selection from an OPM Register

  1. Only those documents pertaining to the selected individual should remain in the AWSS Office.

  2. Documents received from the OPM, except for those of the selectee, should be returned to the OPM and any copies destroyed.

  3. Copies of the Certificate of Eligibles maintained by the AWSS office are not to be disclosed. The certificate is an OPM record and the requester should be directed to the appropriate OPM office.

  4. If, during an interview, an applicant discloses adverse tax information which causes a negative suitability determination, OPM may be advised that the applicant was not selected for employment for reasons that the IRS is prohibited from disclosing pursuant to IRC §6103.

  5. If additional information concerning the specific grounds for non-selection is requested, OPM should be advised that such information is confidential tax information which is protected from disclosure by IRC § 6103 and may not be released unless the applicant consents, in writing, to such release in accordance with IRC § 6103(c) and the regulation promulgated thereunder.

11.3.20.11.7  (09-24-2013)
Selection from an IRS Register

  1. The term "IRS Register" is used here to include all files established and maintained by an IRS Special Examining Unit for the purpose of examining and certifying individuals for selection to vacant positions.

  2. These files may include:

    • Personal qualifications statements

    • Supplemental qualifications statements

    • Other applicant-submitted materials

    • Notations made by raters or reviewers showing earned ratings and veterans preference

    • Register cards

    • Index cards

    • Answer sheets and

    • Certification history which may include certificates of eligibles

  3. Information which compromises the objectivity or validity of the examination and certification process must not be released. This would include such items as:

    • Test items and answer keys and

    • Rating schedules including crediting plans, ratings sheets, test booklets and transmutation tables

    Note:

    These records are in OPM/GOVT-5, Recruiting, Examining and Placement Records, system of records and are exempt under the Privacy Act (5 U.S.C. § 552a(k)(5)).

11.3.20.12  (06-13-2008)
Agency Grievance Files

  1. Agency grievance records are those which are compiled and maintained by the AWSS office as the result of an employee filing a grievance pursuant to IRM 6.771.1, Internal Revenue Service Employee Grievance System and Grievance Examiner Handbook - Agency Grievance System (AGS).

  2. These files are generally a part of Treasury/IRS 36.001, Appeals, Grievances and Complaints Records, and are maintained by the employee grievant's name.

11.3.20.12.1  (05-27-2005)
Documents in the File

  1. The documents in the file may include:

    • Form 5877, Agency Grievance and Authorization for Representative's Access to Official Records

    • The employee's written notice of filing a formal grievance

    • Selection of Grievance Examiner

    • Documentary evidence

    • Interview records and

    • Hearing records

  2. If the grievance is resolved prior to conclusion of the grievance process, the file may or may not include:

    • Examiner's recommendations and report

    • Deciding official's decision or statement of objections and

    • The appellate officials decision

11.3.20.12.2  (05-27-2005)
Access to the File

  1. These files are subject to the Privacy Act and should be accessed under the Privacy Act provisions by the individual to whom the record pertains.

  2. The grievance procedure instructs the IRS to provide a copy of the file to the grievant and the grievant's representative upon written request. To the extent not flagged, a TIGTA Report of Investigation may be provided if it is part of the file.

  3. Those individuals who are named or who have been interviewed (other than the grievant) do not have access under the Privacy Act since the file is in another individual's name.

  4. However, documents such as an affidavit provided by a third party would generally be available to the same third party. Access by a third party should be evaluated in accordance with the FOIA. The final decision letter and other portions of the file may be disclosed under FOIA with that information deleted which would be a clearly unwarranted invasion of personal privacy, or which is otherwise exempt from disclosure under FOIA.

11.3.20.13  (12-31-2001)
Negotiated Agreement Grievance Files

  1. Negotiated Agreement Grievance Files are those records which are compiled and maintained by the AWSS office as the result of an employee filing a grievance under one of the negotiated agreements.

  2. These files are a part of Treasury/IRS 36.001, Appeals, Grievances and Complaint Records, and are maintained by the grievant's name.

11.3.20.13.1  (12-31-2001)
Documents in the File

  1. The documents in the file will vary, based upon the grievance issue.

  2. At a minimum, the file should contain the written decision made at the first step of the negotiated procedure in the applicable collective bargaining agreement.

  3. The appeals and written answers for each step of the grievance must also be maintained per the governing agreement.

11.3.20.13.2  (05-27-2005)
Access to the File

  1. These files are subject to the Privacy Act which governs access by the individual to whom the record pertains. Routine use and the other disclosure provisions in subsection (b) of the Privacy Act are applicable.

  2. The major portion of the file is available to the grievant and the grievant's representative upon written request.

  3. Under 5 U.S.C. § 7114 and the negotiated agreements, the Union has the right to be present at grievance meetings and receive copies of each step's decision, whether or not the grievant chose Union representation.

  4. When the Union is not representing the grievant, the disclosure is made as a routine use. This routine use provides for the disclosure of information to the exclusive representative when required or relevant to its duties.

  5. The intra-management documents discussing the grievance should be reviewed under 5 U.S.C. § 7114(b)(4)(C). See IRM 11.3.20.8 above, and 5 U.S.C. § 552(b)(3) of the FOIA.

  6. Additionally, the documents may receive protection from disclosure under the (d)(5) provision of the Privacy Act as well as the (b)(5) exemption of the FOIA. See IRM 11.3.20.7 above.

  7. To the extent third party tax information is included in these files, the grievant's access, as well as the grievant's representative's access, will only be in accordance with IRC § 6103(l)(4)(A) . See IRM 11.3.20.9.1 above.

  8. There may be grievances with tangential files which are not subject to the Privacy Act, such as promotion files. The disclosure of these accessory files are to be considered separately from the grievance.

11.3.20.14  (09-24-2013)
Retirement Records

  1. Retirement records are those records compiled as a result of an employee applying for voluntary retirement or disability retirement, and those retirements initiated by the IRS.

  2. These records are completed by both the AWSS office and the Union in accordance with instructions in the negotiated agreement.

  3. Retirement records in the control of the AWSS office are a part of Treasury/IRS 36.003, General Personnel and Payroll Records.

  4. When the AWSS office has completed necessary processing, the records are transmitted to the TPC's for payroll and final IRS processing.

  5. The TPC is responsible for:

    1. Maintaining the SF-2806, Individual Retirement Record and

    2. Preparing the SF-2807, Register of Separations & Transfers for retirement actions

    Note:

    The SF-2806 and SF-2807 are included in Treasury/IRS 36.003, General Personnel and Payroll Records.

  6. The retirement records, once they are received by OPM, are included in OPM/Central-1, Civil Service Retirement and Insurance Records.


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