11.3.20 Personnel Records

Manual Transmittal

August 21, 2018

Purpose

(1) This transmits revised IRM 11.3.20, Disclosure of Official Information, Personnel Records.

Material Changes

(1) Editorial changes have been made throughout to update IRM/statute/organizational references and terms. Web references were added/updated throughout to make the text easier to research in electronic media. Added file names to IRM subsection titles pertaining to “Documents in,” “Maintenance of,” and “Access to” so the subsections don’t have the same title.

(2) IRM 11.3.20.1 - Revised the title to Program, Scope and Objectives, to properly reflect the information communicated in this subsection. Included important information to conform to the new internal and management control standards under the following titles:

  1. IRM 11.3.20.1.1, Background - Information from prior subsection 11.3.20.1 was incorporated into this new subsection.

  2. IRM 11.3.20.1.2, Authorities - Information from prior subsection 11.3.20.2 was incorporated into this new subsection.

  3. IRM 11.3.20.1.3, Responsibilities - Added new information regarding responsibilities for the programs and procedures outlined in this IRM.

  4. IRM 11.3.20.1.4, Acronyms - Compiled a list of frequently used acronyms and their definitions for Privacy Act-related access to personnel records.

(3) IRM 11.3.20.2 - Added Standard Employee Identifier (SEID) to the list of employee identifiers for personnel systems of records.

(4) Moved content in former IRM subsections 11.3.20.4.1 through 11.3.20.4.8 into a table in new IRM 11.3.20.3.

(5) IRM 11.3.20.3.1 - Added reference and link to IRM 1.2.49.3 for Delegation Order 11-2, and also added a reference to IRM 11.3.13.

(6) Moved content from former subsections 11.3.20.5.1 through 11.3.20.5.3 into a table in new IRM 11.3.20.4.

(7) IRM 11.3.20.5 - Added reference to IRM 11.3.37 in paragraph (2).

(8) IRM 11.3.20.6 - Added brief info about records of deceased IRS employees with a reference to IRM 11.3.18.2.1

(9) IRM 11.3.20.6.2 - Added clarifications and updated links to the subsection on the Public Information Listing.

(10) Added references to Labor Management’s IRM 6.711 to IRMs 11.3.20.19 and 11.20.19.1

(11) IRM 11.3.20.21.1 - Deleted references to the Treasury Department Handbook for Processing Complaints of Employment Discrimination and replaced it with a link to Equal Employment Opportunity Commission Management Directive (MD) 110.

(12) Deleted entire former IRM 11.3.25 subsection on Investigation Records.

Effect on Other Documents

This supersedes IRM 11.3.20 dated September 24, 2013.

Audience

All Operating Divisions and Functions.

Effective Date

(08-21-2018)

Related Resources

The Disclosure and Privacy Knowledge Base is available at:
https://portal.ds.irsnet.gov/sites/vl003/pages/default.aspx.

Phyllis T. Grimes
Director, Governmental Liaison, Disclosure and Safeguards

Program, Scope and Objectives

  1. Purpose: This IRM provides guidelines for the disclosure of particular records or categories of records maintained by the Human Capital Office (HCO) or division employees with personnel responsibilities and certain records controlled by Office of Personnel Management (OPM).

  2. Audience: The information and guidance in this IRM applies to all IRS employees and contractors.

  3. Policy Owner: Privacy Policy and Knowledge Management (PPKM) office under Privacy Policy and Compliance (PPC) is the Privacy Act personnel records policy owner.

  4. Program Owner: The PPC office, under Privacy, Governmental Liaison and Disclosure (PGLD), is the program office responsible for oversight of Servicewide Privacy Act personnel records matters.

Background

  1. Personnel records were subject to disclosure requirements prior to the enactment of the Freedom of Information Act (FOIA) and Privacy Act of 1974, as amended.

  2. The Office of Personnel Management (OPM) promulgated rules and regulations concerning federal records required for personnel management. Such rules and regulations granted individuals access to most records pertaining to themselves. The OPM rules and regulations are contained in several Parts of Chapter 1, Subpart B, of Title 5, Code of Federal Regulations (CFR), which 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.

  3. The exclusive representative (National Treasury Employees Union in the case of the IRS) is granted access to certain information by virtue of its rights defined under 5 USC § 7114(b)(4).

  4. Personnel/human resources issues are handled by the appropriate HCO function.

  5. For simplicity, HCO Personnel is used throughout this IRM to denote the responsible function for personnel/human resources issues.

Privacy Act and Freedom of Information Act Authorities

  1. The Privacy Act of 1974, as amended, 5 USC § 552a.

  2. The Freedom of Information Act, as amended, 5 United States Code (USC) § 552

  3. Title 5, Code of Federal Regulations (CFR) contains guidance and instructions on the disclosure of personnel records in the following Parts of Chapter 1, Subchapter B:

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

    • Part 294 - Freedom of Information Act instructions

  4. IRC § 6103

  5. The Civil Service Reform Act of 1978, 5 USC, Title VII, § 7114, Part (b)

Responsibilities

  1. PGLD has responsibility for IRS wide compliance oversight with Privacy Act personnel records provisions and will control and process written Privacy Act requests for access and amendment of personnel records.

  2. The individual business units have responsibility for responding to requests for records subject to the Privacy Act. Business units must forward any formal written Privacy Act requests to PPC via the *Privacy mailbox.

  3. All employees and contractors have responsibility for ensuring IRS records (hard copy and electronic) are appropriately managed, retained, and archived in accordance with IRM 1.15 series, Records and Information Management, for records retention and disposition requirements before documents can be destroyed. Refer to Document 12990, IRS Records Control Schedules (RCS), for the National Archives and Records Administration (NARA)-approved IRS records disposition to prevent unauthorized/unlawful destruction of records. Refer to Document 12829, General Records Schedules (GRS), for the NARA-issued disposal authorizations for temporary administrative records common to all Federal agencies.

Acronyms

  1. The following acronyms are used in this IRM section:

    Acronym Definition
    CFR Code of Federal Regulations
    EEO Equal Employment Opportunity
    EEOC Equal Employment Opportunity Commission
    HCO Human Capital Office
    FOIA Freedom of Information Act
    FPM Federal Personnel Manual
    NTEU National Treasury Employees Union
    OPF Official Personnel Folder
    OPM Office of Personnel Management
    PGLD Privacy, Governmental Liaison and Disclosure
    PIL Public Information Listing
    PPC Privacy Policy and Compliance
    SOR System of Records
    USC United States Code

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, Social Security Number (SSN), or Standard Employee Identifier (SEID) 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 11.3.20.2.1(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 HCO management. Requests for access to IRS employee personnel records is made through the office maintaining the records.

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

Privacy Act Systems of Records

  1. The Privacy Act requires Notices of Systems of Records to be published in the Federal Register. IRS’s 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 HCO Personnel functions all have a "3" as the first digit. The systems of records controlled by HCO all have a "6" as the second digit. The last three digits following the period designate the specific system of records controlled by HCO.

  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, HCO Personnel 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 HCO 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 government-wide 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

Conditions of Disclosure Under the Privacy Act

  1. The Privacy Act of 1974 (5 USC § 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.

    Caution:

    When tax records protected by IRC § 6103 are involved, the requirements of that section take precedence over the generalized provisions of the Privacy Act.

  2. The following table outlines the most common conditions that Disclosure personnel will encounter:

    Condition of Disclosure Description
    (b)(1) Internally to officers and employees of the agency who have a need for the information in the performance of their official duties.
    (b)(2) For the release of a record as required by the FOIA. The existence of an actual FOIA request is a prerequisite for application of this provision.
    (b)(3) The routine use provision, which allows for the disclosure of a record for a use which is compatible with the purpose for which the record was collected.

    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.

    Under this condition, disclosures are also made to unions recognized as exclusive bargaining representatives pursuant to 5 USC § 7114.
    (b)(5) This provision is for statistical research or reporting purposes. The record may only be provided in a format that is not individually identifiable.
    (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.

    The requirements for granting a (b)(7) request are specific. Disclosure and the HCO Personnel office should 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.


    When the request involves payroll data, the request is sent to the appropriate Payroll Center with responsibility for the employee's function. Disclosure personnel may consult the Public Information Listing (PIL) to determine the appropriate Payroll Center to contact. See IRM 11.3.13.9.10.1, Public Information Listing, for the PIL web site access procedures.

    Note:

    In the case of a subpoena and/or summons for payroll records, see also the charts attached as exhibits to Delegation Order 11-2 (which is also IRM 1.2.49.3) and IRM 11.3.35, Requests and Demands for Testimony and Production of Documents.



    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.
    (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.
    (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 Accountability Office (GAO).
    (b)(11) Disclosure pursuant to an order of a court of competent jurisdiction. See IRM 11.3.20.3.1 below for specific instructions on disclosures under this condition.

Disclosure Under Court Order

  1. 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 5 CFR § 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 (see also IRM 1.2.49.3 ).

  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, and IRM 11.3.13, Freedom of Information Act, for further guidance on processing requests for personnel and payroll records.

  5. After an employee has left IRS for any reason, HCO will forward the OPF within 90 days to OPM for maintenance and retention. After the OPF has been transferred, 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

Exemption from Disclosure Under the Privacy Act

  1. The Privacy Act provides that certain records may be exempt from access and amendment. The following table contains the Privacy Act exemptions and their descriptions:

    Privacy Act Exemption Description
    (d)(5) Exempts from disclosure information compiled in anticipation of a civil action or proceeding. This provision may be used to exempt information prepared for use in litigation and otherwise protected from release by the FOIA or rules of civil procedure.
    (k)(5) Applies to:
    • Information which would reveal the identity of a source of the information who was provided an express promise of confidentiality

    • Investigatory material compiled solely for the purpose of determining suitability, eligibility, and qualifications for Federal civilian employment or access to classified material

    • A source who supplied information prior to the effective date of the Privacy Act (September 27, 1975) under an implied promise of confidentiality.

    (k)(6)
    • Used for testing or examination materials used solely to determine individual qualifications for appointment or promotion in the Federal service.

    • Claimed because the disclosure of the testing and examination materials would compromise the objectivity or fairness of the examination process.

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). See IRM 11.3.37, Recordkeeping and Accounting for Disclosures.

Freedom of Information Act (FOIA)

  1. The Freedom of Information Act (FOIA) 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 agency 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 5 CFR § 297, and with IRM 11.3.13, Freedom of Information Act.

  4. The Privacy Act only applies to living employees. See OMB Guidelines, 40 Fed. Reg. 28,948, 28,951 (July 9, 1975). However, while the Privacy Act does not grant deceased employees confidentiality, their surviving families and friends have some expectations of privacy concerning certain aspects of records of deceased employees. See IRM 11.3.18.2.1 for further information about disclosure of information concerning deceased employees.

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.

Public Information Listing

  1. There are six items of information which have been designated by the OPM as public or official information. See 5 CFR § 203.311 This information is available from both the Official Personnel Folder (OPF) and Employee Performance Files (EPFs), their automated equivalent records, and from other personnel record files that constitute an agency record within the meaning of the FOIA.

  2. Requests for the Public Information Listing do not have to be processed pursuant to FOIA unless the requester specifically requests processing under the FOIA..

  3. Public information for employees in sensitive positions may be exempt from the Public Information Listing pursuant to discussions with OPM. Whether information may be disclosed often needs to be considered on a case-by-case basis analyzing whether a FOIA exemption is applicable and whether it should be invoked. See . The Public Information Listing available through Disclosure, also does not contain the names of employees who have been assigned an approved IRS pseudonym.

  4. See IRM 11.3.13.9.10.1 for information on the Public Information Listing.

Disclosure to an Exclusive Representative Under the FOIA

  1. Documents requested by the exclusive representative (the National Treasury Employees Union (NTEU) in the case of the IRS) solely under the FOIA 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 NTEU requested a copy of a labor relations training course pursuant to the FOIA, the request could be denied by FOIA exemption (b)(3) in conjunction with 5 USC § 7114(b)(4)(C). See IRM 11.3.20.7 below.

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

Disclosure Under 5 USC § 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 NTEU under the collective bargaining rights are directed to the Labor Relations (LR) office of HCO or other designated LR function.

Disclosure Pursuant to IRC § 6103(l)(4)

  1. Tax returns and return information may be used in disciplinary/adverse actions, suitability determinations and other personnel decisions when relevant. 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 use caution. Coordination with the local Disclosure Manager is recommended.

Disclosure of Tax Records 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 USC § 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 any individual designated by the 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:

      NTEU, 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 an unredacted 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, HCO 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 (see also IRM 1.2.49.3).

  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 the 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 (MSPB), 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., NTEU 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 is 500 and the Purpose Code is 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 NTEU 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 (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 (2) above.

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 11.3.20.8.1(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;


      1) When the appropriate management official identified 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, HCO 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.

Processing Requests

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

  2. HCO 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 HCO activities, provided that tax returns or return information subject to IRC §6103 are not involved

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

  4. The Disclosure Manager will process requests citing the FOIA 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 HCO responsibilities and a novel or complex disclosure problem requiring processing by Disclosure may be locally determined by mutual agreement.

  6. Records requiring the review, recommendation or involvement of functional areas other than HCO and Disclosure, should be coordinated with HCO.

  7. The Disclosure Manager will be available to assist and advise HCO on disclosure matters.

  8. Requests which require payroll information should be worked by HCO. 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 USC § 7114(b)(4) should be forwarded to the Workforce Relations office.

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

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.

Documents in the Promotion/Selection 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 should be withheld citing the appropriate FOIA exemption. 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.

Maintenance of the Promotion/Selection File

  1. The promotion file is maintained in the HCO 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 Performance Appraisal , prepared by an employee's supervisor and which remains current for six or twelve months, is the exception. The copy of the Performance Appraisal can be used in any promotion action during its currency.

Disclosure to the Exclusive Representative Pursuant to 5 USC 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 align 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. Requests for names of employees using pseudonyms require additional scrutiny. See IRM 11.3.13.9.8.

  8. Requests from the NTEU 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 11.3.20.8.1 above.

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 11.3.20.10.3 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 identifying 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.

Disclosure to the Public

  1. When a member of the public, (aside from the exclusive representative exercising its 5 USC § 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.

Selection from an OPM Register

  1. HCO Personnel should only keep documents pertaining to the selected individual.

  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 HCO 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 tax information which causes a negative suitability determination, OPM may be advised that the applicant was not selected for employment but the IRS is prohibited by IRC §6103 from disclosing any tax information to OPM.

  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.

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 USC § 552a(k)(5)).

Agency Grievance Files

  1. Agency grievance records are those which are compiled and maintained by the HCO Personnel 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.

Documents in the Agency Grievance 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

Access to the Agency Grievance 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.

Negotiated Agreement Grievance Files

  1. Negotiated Agreement Grievance Files are those records which are compiled and maintained by the HCO Personnel 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.

Documents in the Negotiated Agreement Grievance 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.

Access to the Negotiated Agreement Grievance 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 USC § 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 USC § 7114(b)(4)(C). See IRM 11.3.20.7 above, and 5 USC § 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 11.3.20.6 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 11.3.20.8.1 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.

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 HCO Personnel office and the Union in accordance with instructions in the negotiated agreement.

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

  4. When the HCO Personnel office has completed necessary processing, the records are transmitted to the Payroll Center 's for payroll and final IRS processing.

  5. The Payroll Center 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.

Voluntary Retirement

  1. Documents such as health and life insurance forms that are maintained as a permanent part of the OPF, are included in the retirement records once a retirement application is received.

  2. SF-2801, Application for Retirement , is completed when an employee indicates a desire to retire.

  3. A retirement file by employee name is not usually established per se, but those documents necessary to process the retirement application are handled as a group.

  4. In some instances where it is anticipated that difficulties may arise in a particular case, a file may be established by employee name so that the necessary documents are maintained.

  5. Copies of certain documents may be maintained by the HCO Personnel office after the employee's separation, but should be destroyed within six months.

Disability Retirement

  1. The personnel records necessary for disability retirement, other than medical records, are the same as for voluntary retirement. A preliminary submission to the OPM for approval of the retirement is required for the disability retirement.

  2. Once the preliminary disability retirement records are received by the OPM and a claim number has been assigned, the records are included in OPM/Central-1, Civil Service Retirement and Insurance Records.

  3. Medical records associated with a disability retirement are discussed in IRM 11.3.20.15.1 below.

Access to Retirement Records

  1. These records are subject to the access provisions of the Privacy Act by the individual to whom the records pertain.

  2. The special provisions for access under the Privacy Act for medical records are described in IRM 11.3.20.15.7 below.

  3. Intra-management memorandums and discussions that may occur during an agency initiated disability retirement may receive protection from disclosure under the (b)(5) exemption of the FOIA and the (d)(5) provision of the Privacy Act.

  4. Once retirement records are received by OPM, all requests should be addressed to OPM.

  5. Guidelines for processing FOIA requests for these records can be found at IRM 11.3.13.9.10.

Medical Records

  1. Medical records are compiled and maintained by the agency at the request of both the employee and the agency.

  2. Medical files for HCO Personnel purposes are maintained in the HCO offices.

  3. The medical records associated with the Health Unit are maintained in the Health Unit.

  4. Medical records are maintained by employee name and the purpose of the file will determine its inclusion in a system of records.

  5. Most medical records are included in OPM/GOVT-10, Employee Medical File System Records.

  6. OPM also includes medical records associated with the OPF In OPM/GOVT-1, General Personnel Records.

Medical Records Pertaining to Disability Retirement

  1. This addresses only the medical records associated with a disability retirement.

  2. A separate file is not required for disability retirement. The confidentiality associated with medical records should be maintained, and a file by employee name would prevent unnecessary observation of the records.

  3. OPM requires approval by an OPM medical officer prior to an employee separating by disability retirement and the agency may wish to maintain a copy of the records while the OPM medical officer performs the review. In certain circumstances, the employee's physician may provide the agency with the SF-3112-C, Physician's Statement, in a sealed envelope.

  4. Disability retirement records are listed in both OPM/GOVT-10, Employee Medical File System Records, and Treasury/IRS 36.003, General Personnel and Payroll Records. The medical records associated with a disability retirement should be accessed under Treasury/IRS 36.003.

  5. The documents which are to be included in the disability retirement package are described in Federal Personnel Manual (FPM) Supplement 831-1, Subchapter S10-7. These include:

    • SF-2801, Application for Immediate Retirement (CSRS)

    • SF-3112, Documentation in Support of Disability Retirement

    • SF-3112-A, Supervisor's Statement

    • SF-3112-D, Agency Certification of Reassignment and Accommodation Efforts and

    • SF-3112-E, Disability Retirement Application Checklist

Medical Determination Records

  1. OPM procedures for establishing the records and file are addressed in 5 CFR § 831.1203 and 1204.

  2. These records are listed in both OPM/GOVT-10 and Treasury/IRS 36.003. Access to these records should be made under Treasury/IRS 36.003.

  3. The same documents necessary for a disability retirement must also be completed for an agency initiated disability retirement.

Health Unit Records

  1. Agency Health Unit records are initiated at the request of an employee seeking medical attention or advice.

  2. These records are maintained by employee name in the Health Units. The records are included in OPM/GOVT-10, Employee Medical file System Records.

  3. Records maintained in Health Units operated by the Internal Revenue Service and private units contracted by the IRS are included in OPM/GOVT-10.

  4. Those records maintained in Health Units operated by the Public Health Service or other agencies are contained in systems of records published by the agency controlling the Health Unit.

Alcohol, Drug Abuse and Employee Assistance Program Records

  1. The records associated with these programs are discussed in FPM Supplement 792-2, Subchapter S-4, Alcoholism and Drug Abuse Program Confidentiality.

  2. These records are included in OPM/GOVT-10, Employee Medical File System Records.

  3. When access is requested by either the individual to whom the record pertains or a third party, the restrictions of 5 CFR § 297.205 must be considered. Disclosure offices should coordinate with HCO Personnel.

Medical Qualification Records

  1. Medical qualification forms are required by the OPM so that agencies may make a medical fitness determination regarding an individual's physical or mental fitness for a position.

  2. These forms are completed by the applicant or employee and are included in OPM/GOVT-1, General Personnel Records, system of records.

  3. The forms may be filed in the OPF, but those parts of the forms which contain medical information are to be filed separately in the HCO Personnel office.

  4. OPM instructions regarding these records are contained in 5 CFR § 339.301 through 306.

Injury Compensation Records

  1. The injury compensation records are compiled when an employee incurs a work related injury or illness.

  2. The injury compensation records are completed by the employee, employee's supervisor and the employee's physician.

  3. The HCO/WCC (Worker's Compensation Center) office sends the original documents to the Department of Labor (DOL). The HCO office maintains a copy of the documents.

  4. These records are included in government-wide systems of records DOL/GOVT-1, Office of Workers' Compensation Programs, Federal Employees' Compensation Act File.

  5. Consult the ERC web site for instructions for injury compensation forms.

Access to Medical Records

  1. Medical records are available to the individual to whom the record pertains under the provisions of the Privacy Act.

  2. Congress, however, enacted Section 552a(f) of that Act, which allows agencies to establish special procedures for the disclosure of medical records.

  3. These special procedures as outlined in 5 CFR § 297.205 are to be used when medical records, including psychological evaluation records, contain information of which a prudent physician would hesitate to inform the individual.

    1. The records, under these conditions, are to be released to the employee's designated physician rather than to the employee. When the medical records contain information that is unfamiliar or for which the Disclosure Manager or HCO Personnel office hesitates to release, the requested medical records should be reviewed by a physician to determine whether the records can be released to the individual or designated physician.

    2. In those offices which have a physician, the review may be made locally. If a geographic area has a Medical Officer, this individual may complete the review. If neither a local physician nor geographic area Medical Officer is available, OPM will provide the services of its Regional Medical Officer.

Release to a Designated Physician

  1. When a determination has been made by a medical authority that the records are to be released to a designated physician, the employee must be so informed. The employee must also be requested to provide the name and address of a designated physician to whom the records are to be provided.

  2. In those circumstances in which the employee declines to designate a physician, the services of the Health Unit physician or geographic area Medical Officer, if available, may be used.

  3. When the IRS Health Unit physician or Medical Officer is unavailable and the employee refuses to designate a physician, the records cannot be released, however, the requirements of the Privacy Act are considered to have been met.

  4. Once the medical records are sent to the designated physician, the disclosure to the employee and any financial charges involved are the responsibility of the employee and the employee's physician.

Official Personnel Folder (OPF)

  1. The Official Personnel Folder (OPF) is an OPM file which is maintained by and in the custody of the agency which is currently employing the individual.

  2. The OPF is included in OPM/GOVT-1, General Personnel Records, and includes those records on the right/permanent side of the OPF. The records on the left/temporary side of the OPF are agency records and solely under the control of the agency and are included in Treasury/IRS 36.003, General Personnel and Payroll Records system of records.

Documents in the OPF

  1. FPM Chapters 293 and 297 contain the basic instructions on the maintenance of the OPF. Other chapters and supplements also contain instructions on the maintenance and completion of various records which are filed in the OPF.

  2. The OPF is the official record of an individual's career in the federal government.

  3. The documents in the OPF record the qualifications, training, experience, promotions, and other items concerning an employee.

  4. Certain records that are maintained in the OPF while an employee is employed are removed when the employee retires.

  5. When an employee retires and receives a Civil Service of Federal Employee retirement annuity, the records, OPF and retirement, are solely under the control of OPM.

  6. When an employee separates from federal service, the OPF, including the remaining SF-7, Service Record Card , are solely under the control of OPM. Access to the OPF by a separated employee is to be made in accordance with the instructions in OPM/GOVT-1.

Access to OPF Records Pursuant to the Freedom of Information Act

  1. Guidelines for processing FOIA requests for OPF records can be found at IRM 11.3.13.9.10.

Access to the OPF Pursuant to the Privacy Act

  1. The release of information (other than public information) from the right (long term) side of the Official Personnel Folder (OPF) is to be in accordance with the routine uses published by OPM rather than the routine uses published by the IRS.

  2. The OPM has provided agencies with a routine use (OPM/GOVT-1, General Personnel Records) to release information from the OPF to other prospective employing Federal agencies for the purpose of selecting the employee for a position.

  3. OPM/GOVT-1, also provides a routine use for other prospective employers at the request of the individual.

  4. OPM/GOVT-1, designates four additional items that may be released to prospective non-Federal employers without the prior written consent of the employee. They are:

    1. Tenure of employment

    2. Civil service status

    3. Length of service in the agency and the Government and

    4. When separated, the date and nature of actions as shown on the Notification of Personnel Action, Standard Form 50

  5. When prospective non-Federal employers request information (other than public information and the four additional items above), prior written consent must be secured from the employee.

  6. The release of information to such agencies as State unemployment compensation boards is provided by routine use of OPM/GOVT-1, General Personnel Records.

  7. IRS Personnel Notices of Systems of Records parallel those of OPM. The records maintained by IRS include the OPF as well as those records controlled solely by IRS.

  8. The SF-78 (prior to 1969) should not be maintained in the OPF and examination papers should be destroyed one year after appointment.

  9. A request to access the OPF by the individual to whom the record pertains may be granted by the agency maintaining it.

  10. If the OPF is properly filed, all documents should be available to the employee. The charge out card is also available to the employee.

Amendment Request

  1. A request to amend a record in the OPF may be granted or denied by the agency maintaining the OPF.

  2. If denied, the appeal rights must be directed to OPM.

Position Classification Files

  1. These records and files are compiled and maintained in the HCO office to meet the requirements of OPM in classifying and describing positions at the proper grade or level.

  2. These files and records are maintained by position designation or numbers rather than by an individual identity. The documents describe position and the organization of a functional area.

  3. These files and records are not subject to the Privacy Act but may be available under the FOIA.

Position Descriptions and Related Documents

  1. Each position within the IRS has a position description.

  2. A position description is the written record of the basic duties and responsibilities that are assigned to a position.

  3. There are certain positions, such as Revenue Officer, which have identical duties and responsibilities at a particular grade, nationwide. For these positions, the OPM encourages the use of a multi-position description or standard position description.

  4. When a standard position description is developed for a position, the description is used by all HCO offices. Standard position descriptions may also be developed for positions within a Campus when there are substantially identical positions.

  5. Infrequently, a position description with a particular grade may be assigned to "incumbent only." This occurs when an individual brings particular skills and responsibilities to a position. Even in these cases, the position description depicts the duties and responsibilities of a position, not the personal information of the individual. As such, a position description is not subject to the Privacy Act.

  6. Each position description should have an evaluation statement. The evaluation statement is a written explanation of how the classification determination was made. The instructions for preparation of evaluation statements are found in IRM 6.511, Position Classification and Position Management.

  7. Each position description is assigned a number. To search for a specific position description, search the Intranet web site through HCO Personnel or use HR Connect.

Annual Position Review

  1. These files are compiled and maintained in the HCO office under the requirements of OPM in FPM Chapter 312.

  2. The documents and records are maintained according to organizational areas, except for narrative reports which include recommendations for management's consideration, and may be accessible under the provisions of the FOIA. The narrative reports may be exempt under the FOIA (b)(2) and (b)(5) exemptions.

  3. The annual position review is conducted jointly by HCO Personnel and management officials .

  4. The files contain the schedule for the review, size of the desk audit sample, positions to be desk audited, the type of review and the explanation of the selection of positions being reviewed.

  5. Supervisors have the responsibility of performing the initial review concerning the accuracy of the position descriptions and position needs. The supervisor then provides Personnel/Human Resources with recommendations concerning the descriptions and position needs.

  6. Personnel/Human Resources prepares narrative reports of findings with advice and recommendations for consideration by management based on the results of the review. These documents may be exempted under the (b)(2) and (b)(5) exemptions of the FOIA.

  7. Refer to IRM 6.511.1.8.7, Position Review Program (PRP)for guidance and additional information.

  8. Desk audits including those made as a part of the annual position review are discussed in IRM 11.3.20.17.3 below.

Desk Audits

  1. These records are maintained in the HCO Personnel with the position description of the particular position.

  2. A desk or work audit is a review of the duties and responsibilities of a position which is accomplished by interviewing the employee in the position and the supervisor of the position.

  3. Desk audits may be performed when an employee appeals the position description; during an annual or other position review; anytime management is considering a change to a particular position; or when OPM is requesting a review of a particular position under the Factor Evaluation System. When audits by OPM require access to returns and return information, procedures outlined in IRM 11.3.20.8.2 above, Disclosures permitted by IRC §6103(l)(4)(B) above, will apply.

  4. The desk audit provides the classifier with first-hand knowledge of the responsibilities of the position so that changes, if necessary, may be made to the position description.

  5. The information contained in the desk audit report relates solely to the position and contains no evaluative information concerning the work performance of the employee in the position.

  6. The notes made by the classifier are preliminary thoughts which may later be researched for applicability to changes in the position description. If retained, the notes may be exempt under FOIA exemption (b)(5).

Position Management Program Files

  1. These files are maintained in the HCO Personnel offices and in the organizational area management offices.

  2. These files contain information concerning reorganization of IRS human resources.

  3. The files contain surveys and studies regarding the organization of a functional area and the changing needs of the function. Also included are recommendations and draft proposals for the reorganization of the function and the allocation or reallocation of the human resources.

  4. Inasmuch as these files contain intra-management recommendations and proposals, the documents may be exempted under FOIA exemptions (b)(2) and (b)(5). Those documents which prescribe the final decisions are available.

  5. Documents which prescribe the allocation of resources would be available under the FOIA unless the disclosure would identify areas of interest and concentration of efforts which would affect civil and criminal law enforcement. Those documents which could affect civil and criminal law enforcement would be exempt from disclosure under FOIA exemptions (b)(2) and (b)(5).

Classification Appeal Files

  1. The Classification Appeal File is established, compiled and maintained as a result of an employee's formal written request for a change in the classification of the employee's position.

  2. The classification appeal is to be maintained in the HCO Office by position, title, series, and grade. If old files are maintained by employee's name, the files are included in Treasury/IRS 36.001, Appeal, Grievances, and Complaints Records.

  3. The instructions for the classification appeal procedure are addressed in IRM 6.511.

Documents in the Classification Appeal File

  1. The file should include:

    • The employee's request for a change in classification

    • Documentation of discussions

    • Desk audit report; and

    • Decision on the appeal

  2. If an appeal is filed with the Department of Treasury or OPM, the records and file are under Treasury's or OPM's control.

Access to the Classification Appeal File

  1. The documents in the file are available to the appellant.

  2. The documents in the file can be disclosed to a third party after deletions of personal identifiers have been made.

Disciplinary Action Files

  1. These records are compiled in anticipation of a proposed disciplinary action against an employee. Disciplinary action matters under 31 USC 330 (conference and practice) are handled by OPR who will follow the general rules of this subsection in processing requests.

  2. The definition and requirements of the various types of disciplinary action are found in IRM 6.711, the Labor Relations IRM.

  3. These files are a part of Treasury/IRS 36.003, General Personnel and Payroll Records. Copies may also exist in Treasury/IRS 00.007, Employee Complaint and Allegation Referral Records. OPR claimant representative disciplinary files fall under Treasury/IRS 37.003 and 37.005.

Documents in the Disciplinary Action File

  1. The documents and records that must be included in the file are described in IRM 6.711.2, Labor-Management Relations, Processing Information Requests.

  2. The specific records will depend upon the basis for the action. Certain records must be included. They are as follows:

    1. Proposed letters of charges

    2. The final notice of decision

    3. The employee's replies, if any and

    4. The basis for the action which may include records from other systems

  3. Only copies of those portions of the investigation report that are used as the basis of the proposed action are to be maintained in the HCO Office.

Access to the Disciplinary Action File

  1. Since these records are maintained as a part of Treasury/IRS 36.003, the file is accessed under the provisions of the Privacy Act.

  2. These files may contain intra-management memorandums and discussions which may receive protection from access by the individual to whom a file pertains under the (d)(5) provision of the Privacy Act and FOIA exemption (b)(5).

  3. Disclosure of tax information from these files is subject to the confidentiality provisions of IRC §6103.

  4. Unflagged TIGTA Reports of Investigation may be released to the subject consistent with IRS rules and statutory considerations.

Adverse Action Files

  1. These records are compiled in anticipation of proposing and taking adverse action against an employee.

  2. These files are maintained by the employee's name in the HCO Office and are included in Treasury/IRS 36.003, General Personnel Records.

  3. Issues involving FPM instructions regarding adverse actions and IRS instructions regarding adverse actions are to be coordinated between HCO Personnel and Disclosure offices.

Documents in the Adverse Action File

  1. Certain documents are required by the instructions listed in IRM 6.752, Disciplinary Suspensions and Adverse Actions. These documents must be maintained in the file and consist of the following:

    1. Copy of notice of proposed disciplinary suspension

    2. Any written reply and affidavits, evidence or material attached thereto

    3. Transcript or summary of oral reply (if any) and exhibits thereto

    4. Copy of final decision

    5. Copies of all correspondence to and from the employee and/or representative and

    6. Proof of delivery of the notice and decision

  2. If a Treasury Inspector General for Tax Administration (TIGTA) report is used to document the charges, only copies of those portions that relate to the charges are to be retained by HCO Personnel.

Access to the Adverse Action File

  1. These files are part of Treasury/IRS 36.003 and are accessed under the provisions of the Privacy Act.

  2. The employee and/or designated representative, upon request, are to receive copies of the information used to support the proposed changes.

  3. Those documents of intra-management discussion and recommendations may be protected under the (d)(5) provision of the Privacy Act and the (b)(5) exemption of the FOIA with respect to the individual to whom the record pertains.

  4. Tax information in these files should be disclosed only as authorized by IRC § 6103.

Equal Employment Opportunity Complaint Files

  1. The Equal Employment Opportunity (EEO) complaint files consist of materials compiled in connection with a complaint against the agency.

  2. Because a complaint file may be in the custody of various EEO Program officials, depending on the stage of complaint processing, a request for a complaint file should be made to the Regional Complaints Center Director who will process the complaint for the IRS if the complaint is formal, or by the IRS Disclosure Office if the allegation is still informal.

  3. The EEO complaint files are included in Treasury/IRS 36.001, Appeals, Grievances and Complaints Records and EEO/GOVT-1, EEO Complaint Records and Appeal Records. See IRM 11.3.20.21.1 below.

Documents in the EEOC Complaint File

  1. The procedures for processing EEO complaints are contained in Equal Employment Opportunity (EEOC) regulations 29 CFR § 1614, EEOC Management Directive (MD) 110.

  2. The EEO Counselor shall destroy the report of counseling, as well as the notes of all counseling sessions and the results thereof, 45 days after the notice of final interview has been issued, unless otherwise notified by the appropriate EEO officer.

  3. A formal complaint must be filed in accordance with 29 CFR § 1614. If the formal complaint is accepted, an investigator will be appointed.

  4. The investigation procedures and the documentation of the investigative file are described in 29 CFR § 1614, EEOC MD 110. EEOC MD 110 details the investigation procedures and the documentation of the investigative file.

  5. The EEO complaint file shall, at a minimum, contain all the documents specified in EEOC MD 110.

  6. When a hearing is held, all documents received and copies of interrogatory transcripts are included in the file. The EEOC Administrative Judge will send to the head of the agency or designee the finding and analysis of the complaint, the decision and remedial action, when appropriate.

  7. The agency decision will advise the complainant of the right to appeal a decision to the (EEOC) or the Merit System Protection Board (MSPB), as appropriate, and of the right to seek judicial review of the complaint.

Access to the EEOC Complaint File

  1. The complainant and/or representative is entitled to the complaint/investigative file as described in Part III of the Handbook.

  2. Access to the investigative file is described in Part III of the Handbook.

  3. A request for access to an EEO complaint/investigative file by an individual, other than the complainant (the subject of the file) and/or his/her representative, or an EEO Program official who is responsible for the processing of the complaint, is to be evaluated under the FOIA.

  4. Requests to access a complaint file must be submitted to the agency in which the complaint file originated. Upon denial to access the file, the requester must be advised of his/her appeal rights under the Privacy Act and the FOIA.

  5. The EEOC has oversight responsibility for access to complaint/investigative files under both the Privacy Act and the FOIA.

  6. When a complainant has appealed a final agency decision or order on an equal employment opportunity matter to the EEOC, to the MSPB, or requested the EEOC to review a final decision in a negotiated grievance action, subsequent requests for such records should be made to the EEOC or MSPB, as appropriate.

  7. Requests received by the EEOC for records that originated in another agency, but which are now in the custody of the EEOC will be coordinated with the originating agency in accordance with 29 CFR § 1610.6.

  8. If access to records that originated in another agency, but which are now in the custody of the EEOC is denied, the appeal rights will be those given by the EEOC to the requester.

Supervisory Documentation Files

  1. These records are compiled and maintained at the discretion of the supervisor except in those functional areas which require the supervisor to maintain such files as described in the IRM.

  2. The Supervisory file, to the extent it is an agency record, is included in Treasury/IRS 36.003, General Personnel Records.

  3. The records maintained in these files are primarily used to evaluate and counsel employees on work performance.

  4. These files contain information prescribed by the negotiated contracts as well as those prescribed by the FPM and IRM.

Documents in the Supervisory Documentation File

  1. The Supervisory File may include promotion appraisal forms, narrative recordation, commendations, copies of awards, copies of SF-50s and SF-1126s, requests for training, and training evaluations.

  2. These files may also include documents required by functional managers. These documents contain information such as case loads, time reports and other work related information.

  3. Care should be taken that out-dated and irrelevant material are not maintained which could adversely affect an employee.

Access to the Supervisory Documentation File

  1. Access by the individual to whom the record pertains is to be processed under the Privacy Act.

  2. In most cases, these records would be protected from third party disclosures under FOIA exemption (b)(6). There may, however, also be records exempt under FOIA exemption (b)(5).

  3. The records that are maintained in the supervisory file may at times be included in other files such as grievance and promotion files. Tax information in these files should be disclosed only as authorized by IRC § 6103. Those records containing labor relations advice are subject to 5 USC § 7114(b)(4)(C).

Access to the Supervisory Documentation File by Employee Representatives

  1. In certain circumstances, an employee is entitled to representation by a NTEU official in a meeting with a supervisor. Personal information (about the employee) contained in the employee's records may be discussed in such meetings. The employee and an accompanying individual of the employee's choice may have access to such personal information.

  2. The NTEU official may also contact the supervisor for copies of documents discussed and/or reviewed in a previous meeting at which the employee and representative were in attendance. The supervisor cannot discuss additional topics or expand upon the discussion with the representative without the prior written consent or presence of the employee.

Upward Mobility Records

  1. The Upward Mobility records on employees who have applied for the program are maintained in the HCO Personnel offices.

  2. The records are maintained by the employee's name and are maintained as a part of Treasury/IRS 36.003, General Personnel and Payroll Records, and/or OPM/GOVT-5, Recruiting, Examining and Placement Records.

  3. The employee's file may consist of an employee's application which includes a skills and education inventory, supervisory evaluation, and development plans.

  4. The employee has access to all information in his/her file.

Program Evaluation Records

  1. The program evaluation records are those intra-management and inter-office records which are compiled and maintained within HCO Personnel Offices as the result of the review and evaluation of the program requirements and responsibilities of the HCO.

  2. These records are maintained at Headquarters level.

  3. The program evaluation records are reports of visitations, recommendations for improvements, suggestions for corrective actions where necessary, field concerns and requests for action, and discussion of findings.

  4. Requests for such documents must be evaluated in accordance with the FOIA. These documents, or portions thereof, may be exempt under the (b)(2) and (b)(5) exemptions.

Congressional Inquiries on Individuals

  1. Routine uses for systems relating to disclosures to Congressional offices are limited to inquiries made at the written request of the individual who is the subject of the record(s).

  2. For those requests where there is either no indication that the request originated from the subject of the record(s) or when the original request was made by a family member, spouse, etc., disclosure to the Congressional office is not authorized. The Congressional office should be so advised and asked if it has any additional information which would enable the IRS to obtain the authorization. The requested information can be released immediately upon receipt of such written authorization. If the subject of the record is an IRS employee who, when contacted, authorizes, in writing, the release of the information, the requested information can be released.

  3. Public information may be provided to the Congressional office without any contact with the subject of the record(s).

  4. Letters or referrals from Congressional offices are maintained either as a part of the general correspondence files or are in files such as adverse or disciplinary files.

  5. For additional guidance with respect to Congressional inquiries, see IRM 11.3.4, Congressional Inquiries.

Correspondence Files

  1. The Correspondence Files maintained by HCO Personnel offices include:

    1. Documents pertaining to employees, individuals and various personnel management areas

    2. Inter/intra-office memorandums

    3. Inter/intra-agency correspondence

    4. Congressional correspondence and

    5. Correspondence with members of the public

  2. The correspondence pertaining to an individual is generally included in the system of records related to the purpose of the correspondence.

    Example:

    When an individual requests information concerning employment with the IRS, the correspondence is generally considered a part of OPM/GOVT-5, Recruiting, Examining and Placement Records.

  3. Correspondence which relates to various personnel management areas may be available under the FOIA.

  4. The correspondence files are located in local, campus and Headquarters HCO Personnel Offices.

  5. Correspondence may also be included in Treasury/IRS 00.001, Correspondence Files and Correspondence Control Files.

Office of Professional Responsibility (OPR)

  1. OPR conducts investigations of persons involved in practice before the IRS. Disciplinary action may be taken. Disclosures to subjects of these actions will be handled by OPR. Refer to IRM 1.25.4, Processing Circular 230 Disciplinary Cases.