B-201881.OM, APR 16, 1981

B-201881.OM: Apr 16, 1981

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BRANDON II: THIS IS IN RESPONSE TO YOUR MEMORANDUM OF JANUARY 16. WE CONCLUDE THAT IT IS PERMISSIBLE TO COLLECT SUCH INFORMATION BY THIS MEANS. AGENCIES ARE REQUIRED TO CONDUCT MINORITY RECRUITMENT PROGRAMS TO ELIMINATE UNDER-REPRESENTATION OF MINORITIES IN THE FEDERAL CIVIL SERVICE. THIS PROGRAM IS ALSO REFERRED TO AS THE FEDERAL EQUAL OPPORTUNITY RECRUITMENT PROGRAM (FEORP). THE COMPTROLLER GENERAL IS TO ESTABLISH A MINORITY RECRUITMENT PROGRAM CONSISTENT WITH 5 U.S.C. IT IS CLEAR THAT SUCH A PROGRAM AS PART OF GAO'S PERSONNEL MANAGEMENT SYSTEM IS NOT SUBJECT TO REGULATION OR OVERSIGHT BY OPM OR OTHER EXECUTIVE BRANCH AGENCIES. WE FIND NO REQUIREMENT THAT GAO IS BOUND TO USE EITHER THE OPM FORM 1386 OR ITS LANGUAGE.

B-201881.OM, APR 16, 1981

SUBJECT: COLLECTION OF RACIAL AND NATIONAL ORIGIN IDENTIFICATION OF POTENTIAL APPLICANTS - B-201881-O.M.

DIRECTOR OF PERSONNEL - FELIX R. BRANDON II:

THIS IS IN RESPONSE TO YOUR MEMORANDUM OF JANUARY 16, 1981, REQUESTING OUR VIEWS ON THE LEGALITY OF COLLECTING RACE AND NATIONAL ORIGIN DATA ON GAO'S JOB INTEREST CARD. FOR THE REASONS STATED BELOW, WE CONCLUDE THAT IT IS PERMISSIBLE TO COLLECT SUCH INFORMATION BY THIS MEANS.

WITH THE ENACTMENT OF THE CIVIL SERVICE REFORM ACT OF 1978, PUBLIC LAW 95-454, 92 STAT. 1111, AGENCIES ARE REQUIRED TO CONDUCT MINORITY RECRUITMENT PROGRAMS TO ELIMINATE UNDER-REPRESENTATION OF MINORITIES IN THE FEDERAL CIVIL SERVICE. SEE 5 U.S.C. SEC. 7201. THIS PROGRAM IS ALSO REFERRED TO AS THE FEDERAL EQUAL OPPORTUNITY RECRUITMENT PROGRAM (FEORP). UNDER REGULATIONS PRESCRIBED BY THE OFFICE OF PERSONNEL MANAGEMENT (OPM), AGENCIES MAY USE THE DATA COLLECTED TO SET UP REFERRAL FILES AND SKILLS BANKS FOR FEORP. SEE FEDERAL PERSONNEL MANUAL LETTER 720-6, OCTOBER 14, 1980. AGENCIES OPERATING UNDER THIS AUTHORITY MUST USE OPM FORM 1386 FOR COLLECTING THE DATA, AND NO SUBSTANTIVE CHANGES MAY BE MADE TO THIS FORM.

HOWEVER, WITH THE ENACTMENT OF THE GENERAL ACCOUNTING OFFICE PERSONNEL ACT OF 1980, PUBLIC LAW 96-191, 94 STAT. 27, FEBRUARY 15, 1980, GAO NEED NOT BE BOUND BY OPM'S REGULATIONS IN THIS AREA. UNDER THE AUTHORITY OF SECTION 3(G) OF PUBLIC LAW 96-191, THE COMPTROLLER GENERAL IS TO ESTABLISH A MINORITY RECRUITMENT PROGRAM CONSISTENT WITH 5 U.S.C. SEC. 7201, BUT IT IS CLEAR THAT SUCH A PROGRAM AS PART OF GAO'S PERSONNEL MANAGEMENT SYSTEM IS NOT SUBJECT TO REGULATION OR OVERSIGHT BY OPM OR OTHER EXECUTIVE BRANCH AGENCIES. SEE, FOR EXAMPLE, H. REPT. NO. 96-494, 96TH CONG., 1ST SESS. 2, 5, AND 10 (1979).

SINCE GAO'S MINORITY RECRUITMENT PROGRAM NEED ONLY BE CONSISTENT WITH 5 U.S.C. SEC. 7201, WE FIND NO REQUIREMENT THAT GAO IS BOUND TO USE EITHER THE OPM FORM 1386 OR ITS LANGUAGE. THEREFORE, WE BELIEVE IT IS PERMISSIBLE TO REQUEST DATA ON RACE AND NATIONAL ORIGIN ON THE JOB INTEREST CARD.

WITH REGARD TO PRIVACY ACT DISCLOSURES, WE NOTE THAT THIS OFFICE, AS AN ARM OF CONGRESS, IS NOT AN "AGENCY" WITHIN THE MEANING OF THE DEFINITION UNDER THE PRIVACY ACT (SEE 5 U.S.C. SECS. 552A AND 552(E) (1976)), AND THEREFORE, THE PRIVACY ACT DOES NOT RESTRICT GAO'S USE OF RECORDS. WHILE OUR POLICY IS TO FOLLOW THE SPIRIT OF THE LAW ON A VOLUNTARY BASIS, WE RECOMMEND THAT, IN ORDER TO AVOID ANY IMPLICATION THAT THE PRIVACY ACT DOES APPLY TO GAO, THE EXISTING REFERENCES TO THE PRIVACY ACT SHOULD BE REMOVED FROM THIS JOB INTEREST CARD. ACCORDINGLY, THE HEADING "PRIVACY ACT INFORMATION" AND THE FIRST SENTENCE REFERRING TO THE PRIVACY ACT SHOULD BE DELETED FROM THIS FORM.

DIGEST

1. GAO PERSONNEL REQUESTS GUIDANCE ON COLLECTION OF DATA ON RACE AND NATIONAL ORIGIN FOR USE IN SKILLS BANK FOR MINORITY RECRUITMENT PROGRAM. PERSONNEL IS ADVISED THAT SUCH COLLECTION IS PERMISSIBLE AND THAT, ALTHOUGH OFFICE OF PERSONNEL MANAGEMENT RESTRICTS AGENCIES TO USE OF OPM FORM FOR COLLECTION OF SUCH DATA, GAO NEED NOT BE LIMITED TO USE OF OPM FORM SINCE AUTHORITY FOR GAO'S MINORITY RECRUITMENT PROGRAM IS CONTAINED IN GAO PERSONNEL ACT, PUB. L. 96-191.

2. EXISTING DISCLOSURE STATEMENT ON GAO'S JOB INTEREST CARD SHOULD BE REVISED BY DELETING REFERENCES TO "PRIVACY ACT" TO AVOID ANY IMPLICATION THAT PRIVACY ACT, 5 U.S.C. SECS. 552A AND 552(E), DOES APPLY TO GAO.