uipl_0490.html

ETA Advisory File Text

U.S. DEPARTMENT OF LABOREmployment and Training AdministrationWashington D. C. 20210 CLASSIFICATION UI CORRESPONDENCE SYMBOL TEURL ISSUE DATE November 13 1989 RESCISSIONS EXPIRATION DATE November 30 1990 DIRECTIVE UNEMPLOYMENT INSURANCE PROGRAM LETTER NO. 04-90 TO ALL STATE EMPLOYMENT SECURITY AGENCIES FROM DONALD J. KULICKAdministratorfor Regional Management SUBJECT Applicability of P.L. 100-503 The Computer Matching and Privacy Protection Act of 1988 to State Unemployment Insurance Service Operations Purpose.To advise State agencies of the applicability of provisions of The Computer Matching and Privacy Protection Act of 1988 P.L. 100-503 to State agency operations and to provide State agencies with the office of Management and Budget's guidance interpreting the provisions of the Act. Reference.Public Law 100-503 The Computer Matching and Privacy Protection Act of 1988 54 FR 25818 - 25829 Final Guidance Interpreting the Provisions of Public Law 100-503 the Computer Matching and Privacy Protection Act of 1988. Background Discussion.The purpose of the Computer Matching and Privacy Protection Act of 1988 CMPPA which amends the provisions of the Privacy Act of 1974 found at 5 U.S.C. 552a is to improve the oversight and procedures governing the disclosures of personal information in quot computer matching programs quot and to protect the privacy of individuals whose Federal records are used in such matching programs. These amendments apply to any quot computer matching program quot using any Federal quot record which is contained in a system of records. quot quot Matching program quot is defined as any computerized comparison of -- i two or more automated systems of records or a system of records with non-Federal records for the purpose of -- I establishing or verifying the eligibility of or continuing compliance with statutory and regulatory requirements by applicants for recipients or beneficiaries of participants in or providers of services with respect to cash or in-kind assistance or payments under Federal benefit programs or II recouping payments or delinquent debts under such Federal benefit programs or ii two or more automated Federal personnel or payroll systems of records or a system of Federal personnel or payroll records with non-Federal records. quot Federal quot record quot is defined as any item collection or grouping of information about an individual that is maintained by a Federal agency ... and that contains his name or the identifying number symbol or other identifying particular assigned to the individual .... quot quot System of records quot is defined as A group of any records under the control of any Federal agency from which information is retrieved by the name of the individual or by some identifying number symbol or other identifying particular assigned to the individual. quot The CMPPA provides that such computer matching programs may be conducted only pursuant to written matching agreements entered into by the Federal agency providing records contained in a system of records and the Federal or non-federal agency receiving records contained in a system of records for use in the matching program. Among the statutory requirements that must be met by the matching agreements is specification of the purpose and legal authority for the matching program a description of the nature of the match and the expected results a description of the procedures for notifying individuals affected and for verification of information and a description of procedures for the protection of the records. The Office of Management and Budget OMB published at 54 FR 25818 final guidance for the use of agencies in implementing the amendments made to 5 U.S.C. 552a. OMB indicated that these guidelines augmented and should be used with the quot Office of Management and Budget OMB Guidelines on the Administration of the Privacy Act of 1974 quot issued on July 1 1975 and supplemented on November 21 1975 and Appendix 1 to OMB Circular No. A-130 published on December 24 1985 50 FR 52738 . Interpretation.Questions have arisen concerning the applicability of the amendments made by the CMPPA to the Federal-State unemployment compensation UC program and to the related Federal programs UCFE UCX TAA DUA REPP and AEPP . It has been determined that the CMPPA amendments to 5 U.S.C. 552a are inapplicable to State UC programs including the EB program to data exchanged by the States under the U.I. Interstate Crossmatch and Claimant Locator System and to the Federal UC programs. Wage and claim information about individuals claiming benefits under the UC and related Federal programs is maintained by the States not by DOL. Such documents do not therefore constitute a Federal quot system of records quot and are not subject to the CMPPA amendments. The only exception to this determination is where there is a use of a Federal quot record which is contained in a system of records quot for purposes of a quot matching program quot as defined above. This would occur and the computer matching restrictions would thus be applicable where a State makes a quot computerized comparison quot with any Federal quot system of records quot for the purpose of assuring proper payments or recouping payments under a Federal UC program. The computer matching restrictions would also be applicable where a State makes a quot computerized comparison quot of a system of Federal personnel or payroll records with non-Federal records regardless of the purpose. Therefore whether such a computerized comparison of Federal personnel or payroll records is performed for the purpose of assuring proper payments under a Federal UC program a State program or any reason whatsoever the computer matching restrictions of amended 5 U.S.C. 552a are applicable. In passing we note that Federal agencies furnish wage and separation information on UCFE and UCX claimants to State agencies as a permissible disclosure of a record for quot routine use quot under 5 U.S.C. 552a b 3 . This information may be used by the State agency only for the purpose for which it was disclosed -- the adjudication of a claimant's UCFE or UCX claim. This use of these quot records quot is not subject to the CMPPA amendments because it is not a quot computerized comparison quot and therefore is not a quot matching program quot under 5 U.S.C. 552a a 8 . Action Required.State Administrators are requested to provide this information to appropriate staff. Inquiries.Questions should be addressed to the appropriate Regional Office. Attachments. - Public Law 100-503 the Computer Matching and Privacy Protection Act of 1988 - 54 Federal Register 25818 - 25829 Privacy Protection Act of 1974 Final Guidance Interpreting the Provisions of Public Law 100-503 the Computer Matching and Privacy Protection Act of 1988. PUBLIC LAW 100-503-OCT. 18 1988 102 STAT. 2507 Public Law 100-503 100th Congress An Act To amend title 5 of the United States Code to ensure privacy integrity and verification of data disclosed for computer matching to establish Data IntegrityBoards within Federal agencies and for other purposes. Oct. 18. 1988 S. 496 Computer Matching and Privacy Protection Act of 1988. 5 USC 552a note. Be it enacted by the Senate and House of Representatives of the United States of America in Congress assembled SECTION 1. SHORT TITLE. This Act may be cited as the quot Computer Matching and Privacy Protection Act of 1988 quot . SEC. 2. MATCHING AGREEMENTS. Section 552a of title 5 United States Code is amended-- 1 by redesignating subsections o p and q as subsections r s and t respectively and 2 by inserting after subsection n the following new subsections quot o MATCHING AGREEMENTS. - 1 No record which is contained in a system of records may be disclosed to a recipient agency or non-Federal agency for use in a computer matching program except pursuant to a written agreement between the source agency and the recipient agency or non-Federal agency specifying- quot A the purpose and legal authority for conducting the program quot B the justification for the program and the anticipated results including a specific estimate of any savings quot C a description of the records that will be matched including each data element that will be used the approximate number of records that will be matched and the projected starting and completion dates of the matching program quot D procedures for providing individualized notice at the time of application and notice periodically thereafter as directed by the Data Integrity Board of such agency subject to guidance provided by the Director of the Office of Management and Budget pursuant to subsection v to- quot i applicants for and recipients of financial assistance or payments under Federal benefit programs and quot ii applicants for and holders of positions as Federal personnel that any information provided by such applicants recipients holders and individuals may be subject to verification through matching programs quot E procedures for verifying information produced in such matching program as required by subsection p quot F procedures for the retention and timely destruction of identifiable records created by a recipient agency or non- Federal agency in such matching program . quot G procedures for ensuring the administrative technical and physical security of the records matched and the results of such programs quot H prohibitions on duplication and redisclosure of records provided by the source agency within or outside the recipient agency or the non-Federal agency except where required by law or essential to the conduct of the matching program quot I procedures governing the use by a recipient agency or non-Federal agency of records provided in a matching program by a source agency including procedures governing return of the records to the source agency or destruction of records used in such program quot J information on assessments that have been made on the accuracy of the records that will be used in such matching program and quot K that the Comptroller General may have access to all records of a recipient agency or a non-Federal agency that the Comptroller General deems necessary in order to monitor or verify compliance with the agreement. quot 2 A A copy of each agreement entered into pursuant to paragraph 1 shall- quot i be transmitted to the Committee on Governmental Affairs of the Senate and the Committee on Government Operations of the House of Representatives and quot ii be available upon request to the public Public information. quot B No such agreement shall be effective until 30 days after the date on which such a copy is transmitted pursuant to subparagraph A i . quot C Such an agreement shall remain in effect only for such period not to exceed 18 months as the Data Integrity Board of the agency determines is appropriate in light of the purposes and length of time necessary for the conduct of the matching program. quot D Within 3 months prior to the expiration of such an agreement pursuant to subparagraph C the Data Integrity Board of agency may without additional review renew the matching amendment for a current ongoing matching program for not more than one additional year if- - quot i such program will be conducted without any change and quot ii each party to the agreement certifies to the Board in writing that the program has been conducted in compliance with the agreement. quot p VERIFICATION AND OPPORTUNITY TO CONTEST FINDINGS. 1 In order to protect any individual whose records are used in matching programs no recipient agency non-Federal agency or source agency may suspend terminate reduce or make a final denial of any financial assistance or payment under a Federal benefit program to such individual or take other adverse action against such individual as a result of information produced by such matching programs until an officer or employee of such agency has independently verified such information. Such independent verification may be satisfied by verification in accordance with A the requirements of paragraph 2 and B any additional requirements governing verification under such Federal benefit program. quot 2 Independent verification referred to in paragraph 1 requires independent investigation and confirmation of any information used as a basis for an adverse action against an individual including where applicable- quot A the amount of the asset or income involved quot B whether such individual actually has or had access to such asset or income for such individual's own use and quot C the period or periods when the individual actually had such asset or income. quot 3 No recipient agency non-Federal agency or source agency may suspend terminate reduce or make a final denial of any financial assistance or payment under a Federal benefit program to any individual described in paragraph 1 or take other adverse action against such individual as a result of information produced by a matching program A unless such individual has received notice from such agency containing a statement of its findings and informing the individual of the opportunity to contest such findings and B until the subsequent expiration of any notice period provided by the program's law or regulations or 30 days whichever is later. Such opportunity to contest may be satisfied by notice hearing and appeal rights governing such Federal benefit program. The exercise of any such rights shall not affect any rights available under this section. quot 4 Notwithstanding paragraph 3 an agency may take any appropriate action otherwise prohibited by such paragraph if the agency determines that the public health or public safety may be adversely affected or significantly threatened during the notice period required by such paragraph. Public healthand safety. quot q SANCTIONS- 1 Notwithstanding any other provision of law no source agency may disclose any record which is contained in a system of records to a recipient agency or non-Federal agency for a matching program if such source agency has reason to believe that the requirements of subsection p or any matching agreement entered into pursuant subsection o or both are not being met by such recipient agency. quot 2 No source agency may renew a matching agreement unless- quot A the recipient agency or non-Federal agency has certified that it has complied with the provisions of that agreement and quot B the source agency has no reason to believe that the certification is inaccurate. quot . SEC. 3. NOTICE OF MATCHING PROGRAMS a NOTICE IN FEDERAL REGISTER.-- Subsection e of section 552a of title 5 United States Code is amended- 1 by striking out quot and quot at the end of paragraph 10 2 by striking out the period at the end of paragraph 11 and inserting in lieu thereof quot and quot and 3 by adding at the end thereof the following new paragraph quot 12 if such agency is a recipient agency or a source agency in a matching pregram with a non-Federal agency with respect any establishment or revision of a matching program 30 days prior to conducting such program publish in the Federal Register notice of such establishment or revision. quot . b REPORT TO CONGRESS AND OFFICE OF MANAGEMENT AND BUDGET.-- Subsection r of section 552a of title 5 United States Code as redesignated by section 2 b l of this Act is amended to read as follows quot r REPORT ON NEW SYSTEMS AND MATCHING PROGRAMS.--Each agency that proposes to establish or make a significant change in a system of records or a matching program shall provide adequate advance notice of any such proposal in duplicate to the Committee on Government Operations of the House of Representatives the Committee on Governmental Affairs of the Senate and the Office of Management and Budget in order to permit an evaluation of the probable or potential effect of such proposal on the privacy or other rights of individuals. quot . SEC. 4. DATA INTEGRITY BOARD. Contracts. Section 552a of title 5 United States Code as amended by section 2 b l of this Act is amended by adding at the end thereof the following new subsection quot u DATA INTEGRITY BOARDS.-- 1 Every agency conducting or articipating in a matching program shall establish a Data Integrity Board to oversee and coordinate among the various components of such agency the agency's implementation of this section. quot 2 Each Data Integrity Board shall consist of senior officials designated by the head of the agency and shall include any senior official designated by the head of the agency as responsible for implementation of this section and the inspector general of the agency if any. The inspector general shall not serve as chairman of the Data Integrity Board. quot 3 Each Data Integrity Board- quot A shall review approve and maintain all written agreements for receipt or disclosure of agency records for matching programs to ensure compliance with subsection o and all relevant statutes regulations and guidelines quot B shall review all matching programs in which the agency has participated during the year either as a source agency or recipient agency determine compliance with applicable laws regulations guidelines and agency agreements and assess the costs and benefits of such programs quot C shall review all recurring matching programs in which the agency has participated during the year either as a source agency or recipient agency for continued justification for such disclosures Reports.PublicInformation. quot D shall compile an annual report which shall be submittted to the head of the agency and the Office of Management and Budget and made available to the public on request describing the matching activities of the agency including-- Contracts. quot i matching programs in which the agency has participated as a source agency or recipient agency quot ii matching agreements proposed under subsection o that were disapproved by the Board quot iii any changes in membership or structure of the Board in the preceding year quot iv the reasons for any waiver of the requirement in paragraph 4 of this section for completion and submission of a cost-benefit analysis prior to the approval of a matching program quot v any violations of matching agreements that have been alleged or identified and any corrective action taken and quot vi any other information required by the Director of the Office of Management and Budget to be included in such report quot E shall serve as a clearinghouse for receiving and providing information on the accuracy completeness and reliability of records used in matching programs quot F shall provide interpretation and guidance to agency components and personnel on the requirements of this section for matching programs quot G shall review agency recordkeeping and disposal policies and practices for matching programs to assure compliance with this section and quot H may review and report on any agency matching activities that are not matching programs. Contracts. quot 4 A Except as provided in subparagraphs B and C a Data Integrity Board shall not approve any written agreement for a matching program unless the agency has completed and submitted to such Board a cost-benefit analysis of the proposed program and such analysis demonstrates that the program is likely to be cost effective. quot B The Board may waive the requirements of subparagraph A of this paragraph if it determines in writing in accordance with guidelines prescribed by the Director of the Office of Management and Budget that a cost-benefit analysis is not required. quot C A cost-benefit analysis shall not be required under subparagraph A prior to the initial approval of a written agreement for a matching program that is specifically required by statute. Any subsequent written agreement for such a program shall not be approved by the Data Integrity Board unless the agency has submitted a cost-benefit analysis of the program as conducted under the preceding approval of such agreement. Contracts. quot 5 A If a matching agreement is disapproved by a Data Integrity Board any party to such agreement may appeal the disapproval to the Director of the Office of Management and Budget. Timely notice of the filing of such an appeal shall be provided by the Director of the Office of Management and Budget to the Committee on Govern mental Affairs of the Senate and the Committee on Government Operations of the House of Representatives. quot B The Director of the Office of Management and Budget may approve a matching agreement notwithstanding the disapproval of a Data Integrity Board if the Director determines that-- quot i the matching program will be consistent with all applicable legal regulatory and policy requirements quot ii there is adequate evidence that the matching agreement will be cost-effective and. quot iii the matching program isr in the public interest. quot C The decision of the Director to approve a matching agreement shall not take effect until 30 days after it is reported to committees described in subparagraph A .. quot D If the Data Integrity Board and the Director of the Office of Management and Budget disapprove a matching program proposed by the inspector general of an agency the inspector general may report the disapproval to the head of the agency and to the Congress. Reports. quot 6 The Director of the Office of Management and Budget shall annually during the first 3 years after the date of enactment of this subsection and biennially thereafter consolidate in a report to the Congress the information contained in the reports from the various Data Integrity Boards under paragraph 3 D . Such report shall include detailed information about costs and benefits of matching programs that are conducted during the period covered by such consolidated report and shall identify each waiver granted by a Data Integrity Board of the requirement for completion and submission of a cost-benefit analysis and the reasons for granting the waiver. quot 7 In the reports required by paragraphs 3 D and 6 agency matching activities that are not matching programs may be reported on an aggregate basis if and to the extent necessary to protect ongoing law enforcement or counterintelligence investigations. quot . SEG 5. DEFINITIONS. Subsection a of section 552a of title 5 United States Code is amended- 1 by striking out quot and quot at the end of paragraph 6 2 by striking out the period at the end of paragraph 7 and inserting in lieu thereof a semicolon and 3 by adding at the end thereof the following new paragraphs quot 8 the term matching program'-- quot A means any computerized comparison of-- quot i two or more automated systems of records with non-Federal records for the purpose of-- quot I establishing or verifying the eligibility of or continuing compliance with statutory and regulatory requirements by applicants for recipients or beneficiaries of participants in or providers of services with respect to cash or in-kind assistance or payments under Federal benefit programs or quot II recouping payments or deliquent debts under such Federal benefit programs or quot ii two or more automated Federal personnel or payroll systems of records or a system of Federal personnel or payroll records with non-Federal records quot B but does not include-- quot i matches performed to produce aggregate statistical data without any personal identifiers quot ii matches performed to support any research statistical project the specific data of which may not be used to make decisions concerning the rights benefits or privileges of specific individuals quot iii matches performed by an agency or component thereof which performs as its principal function any activity pertaining to the enforcement of criminal laws subsequent to the initiation of a specific criminal or civil law enforcement investigation of a named person or persons for the purpose of gathering evidence against such person or persons quot iv matches of tax information I pursuant to section 6103 d of the Internal Revenue Code of 1986 II for purposes of tax administration as defined in section 6103 b 4 of such Code III for the purpose of intercepting a tax refund due an individual under authority granted by section 464 or 1137 of the Social Security Act or IV for the purpose of intercepting a tax refund due an individual under any other tax refund intercept program authorized by statute which has been determined by the Director of the Office of Management and Budget to contain verification notice and hearing requirements that are substantially similar to the procedures in section 1137 of the Social Security Act quot v matches- quot I using records predominantly relating to Federal personnel that are performed for routine administrative purposes subject to guidance provided by the Director of the Office of Management and Budget pursuant to subsection v or quot II conducted by an agency using only records from systems of records maintained by that agency if the purpose of the match is not to take any adverse financial personnel disciplinary or other adverse action against Federal personnel or quot vi matches performed for foreign counterintelligence purposes or to produce background checks for security clearances of Federal personnel or Federal contractor personnel quot 9 the term 'recipient agency' means any agency or contractor thereof receiving records contained in a system of records from a source agency for use in a matching program quot 10 the term 'non-Federal agency' means any State or local government or agency thereof which receives records contained in a system of records from a source agency for use in a matching program quot 11 the term 'source agency' means any agency which discloses records contained in a system of records to be used in a matching program or any State or local government or agency thereof which discloses records to be used in a matching program quot 12 the term 'Federal benefit program' means any program administered or funded by the Federal Government or by any agent or State on behalf of the Federal Government providing cash or in-kind assistance in the form of payments grants loans or loan guarantees to individuals quot 13 the term 'Federal personnel' means officers and employees of the Government of the United States members of the uniformed services including members of the Reserve Components individuals entitled to receive immediate or deferred retirement benefits under any retirement program of the Government of the United States including survivor benefits . quot . SEC. 6. FUNCITONS OF THE DIRECTOR OF THE OFFICE OF MANAGEMENT AND BUDGET. a AMENDMENT.-Section 552a of title 5 United States Code is further amended by adding at the end thereof the following quot v OFFICE OF MANAGEMENT AND BUDGET RESPONSIBILITIES.-The Director of the Office of Management and Budget shall- Regulations. quot 1 develop and after notice and opportunity for public comment prescribe guidelines and regulations for the use of agencies in implementing the provisions of this section and quot 2 provide continuing assistance to and oversight of the implementation of this section by agencies. quot . b IMPLEMENTATION GUIDANCE FOR AMENDMENTS.-The Director shall pursuant to section 552a v of title 5 United States Code Regulations. develop guidelines and regulations for the use of agencies in implementing the amendments made by this Act not later than 8 months after the date of enactment of this Act. 5 USC552a note.5 USC 552a note c CONFORMING AMENDMENT. - Section 6 of the Privacy Act of 1974 is repealed. SEC. 7. COMPILATION OF RULES AND NOTICES. Section 552a f of title 5 United States Code is amended by striking out quot annually quot in the last sentence and inserting quot biennially quot .. SEC. 8. ANNUAL REPORT. Subsection s of section 552a of title 5 United States Code as redesignated by section 2 of this Act is amended- 1 by striking out quot ANNUAL quot in the heading of such subsection and inserting quot BIENNIAL. quot 2 by striking out quot annually submit quot and inserting quot biennially submit quot 3 by striking out quot preceding year quot and inserting quot preceding 2 years quot and 4 by striking out quot such year quot and inserting quot such years quot . SEC. 9. RULES OF CONSTRUCTION. 5 USC 552a note. Nothing in the amendments made by this Act shall be construed to authorize- 1 the establishment or maintenance by any agency of a national data bank that combines merges or links information on individuals maintained in systems of records by other Federal agencies 2 the direct linking of computerized systems of records maintained by Federal agencies 3 the computer matching of records not otherwise authorized by law or 4 the disclosure of records for computer matching except to a Federal State or local agency. SEC. 10. EFFECTIVE DATES. 5 USC 552a note. a IN GENERAL-- Except as provided in subsection b the amendments made by this Act shall take effect 9 months after the date of enactment of this Act. b EXCEPTIONS.-- The amendment made by sections 3 b 6 7 and 8 of this Act shall take effect upon enactment. Approved October 18 1988. LEGISLATIVE HISTORY-S. 496 H.R. 4699r HOUSE REPORTS No. 100-802 accompanying H.R. 4699 Comm. on Government Operations SENATE REPORTS No. 100-516 Comm. on Governmental Affairs . CONGRESSIONAL RECORD Vol. 133 1987 May 21 considered and passed Senate. Vol. 134 1988 Aug. 1 HR 4699 considered and passed House proceedings vacated and S. 496 amended passed in lieu. Sept 20 Senate concurred in House amendment with an amendment. Oct. 3. House concurred in Senate amendment.