[Material Transmitted:]{.underline}

HHS Instruction 293-3, Employee Performance File System Records

[Material]{.underline} Superseded:

HHS Instruction 293-3 (all)

[Background:]{.underline}

This Instruction has been revised consistent with recent changes in the
organization of HHS, and in support of HHS administrative initiatives
calling for more streamlined rules and greater delegations of authority.

This issuance streamlines the rules and updates the Instruction\'s
contents.

Any reference to \"OPDIV\" in this Instruction now includes AHCPR,
ATSDR, CDC, FDA, HRSA, IHS, NIH, SAMHSA, the Office of the Secretary,
the Program Support Center, HCFA, ACF, and AOA.

This issuance is effective immediately. Implementation under this
issuance must be carried out in accordance with applicable laws and
bargaining agreements.

[Filing Instructions:]{.underline}

Remove superseded material and file new material. Post receipt of this
transmittal to the HHS Check List of Transmittals and file this
transmittal in sequential order after the check list.

Eugene Kinlow

Deputy Assistant Secretary for

Human Resources, OASMB

INSTRUCTION 293-3

# HHS PERSONNEL INSTRUCTION 293-3

# [EMPLOYEE PERFORMANCE FILE (EPF) SYSTEM RECORDS]{.underline}

293-3-00 Purpose

10 References

20 Coverage

30 Departmental Requirements

40 Privacy and Freedom of Information Act Considerations

50 Access to the EPF Record System

60 Disposition Requirements

Exhibit 293-3-A, Access to Employee Performance File System Records

293-3-00 PURPOSE

This Instruction states the policies and requirements of this Department
relative to the establishment, maintenance, retention, disposal, and
safeguarding of EPF system records.

293-3-10 REFERENCES

A. 5 U.S. Code 552a (law - Privacy Act - records maintained on
individuals)

B. 5 CFR, Part 293 (regulations - personnel records)

C. 5 CFR, Part 294 (regulations - availability of official information)

D. 5 CFR, Part 297 (regulations - privacy procedures for personnel
records)

E. 5 CFR, Part 430.209 (regulations - disposition of records)

F. 45 CFR, Part 5b (regulations - HHS Privacy Act regulations)

G. The Guide for Personnel Recordkeeping (Office of Personnel Management
(OPM) Operating Manual, dated November 30, 1994, and March 15, 1996)

H. HHS Personnel Instruction 293-1 (personnel and equal employment
records disposal)

I. HHS Personnel Instruction 297-1 (protection of privacy in personnel
records systems)

J.  HHS Performance Management Plan (dated April 26, 1993)

K.  HHS Personnel Instruction 430-6 (performance management for members
    of the senior executive service)

L. HHS Personnel Instruction 430-7 (performance appraisal system)

293-3-20 COVERAGE

This Instruction applies to all employees of this Department, regardless
of pay plan, grade, or occupational group, except Commissioned Corps
officers and Senior Biomedical Research Service members

293-3-30 DEPARTMENTAL REQUIREMENTS

A. Each personnel office must establish an EPF record system for each
employee for whom it maintains an Official Personnel Folder (OPF),
including members of the Senior Executive Service (SES). These records
may be maintained either in an envelope kept in the employee\'s OPF or
in a separate file maintained in either the personnel office or other
office as authorized by regulation.

B. The EPF system established for [non-SES]{.underline} employees must
contain the following records or any other supporting documents for the
period indicated:

[Record]{.underline} [Retention Period]{.underline}

1\. Annual rating of record issued under a 4 years

performance appraisal program within the

HHS performance appraisal system.

2\. After the final appraisal is issued, any 4 years

form which identifies job elements and

the standards for those elements, with

any changes thereto, including appraisal

information on those elements, if recorded.

C. The EPF system established for SES members must contain the following
records or any other supporting documents for the period indicated:

[Record]{.underline} [Retention Period]{.underline}

1\. Annual rating of record issued under 5 years

an SES appraisal system.

2\. After the final rating of record is issued, 5 years

any SES performance appraisal form which

identifies job elements and standards for

those elements, with any changes thereto,

including appraisal information on those

elements, if recorded.

3\. Documented progress reviews and narrative 5 years

description of performance.

4\. Any supporting documentation for a particu- 5 years

lar evaluation that is submitted with the

performance appraisal form (including

written statements of the employee).

5\. Records pertaining to SES appraisals 5 years

which support recommendations made by

Performance Review Boards.

6\. Any form or other document regarding 5 years

performance-related decisions or recommen-

dations of an Executive Resources Board.

7\. Any form or other document used to 5 years

recommend an individual for Meritorious

or Distinguished Executive Rank and records

supporting the recommendation.

293-3-40 PRIVACY AND FREEDOM OF INFORMATION ACT CONSIDERATIONS

A. Performance-related records designated as EPF system records are
Privacy Act records and are covered by 5 U.S. Code 552a, 5 CFR, Part
293, and \"The Guide to Personnel Recordkeeping\" (OPM Operating
Manual).

B. Individuals responsible for maintaining EPF system records must
insure that their maintenance, retention, and disposal are in accordance
with the requirements of the Privacy Act (5 U.S. Code 552a), OPM\'s
applicable regulations (5 CFR, Part 293 and 297), the Department\'s
Privacy Act regulations (45 CFR, Part 5b), and HHS Personnel
Instructions 293-1 and 297-1.

293-3-50 ACCESS TO THE EPF RECORD SYSTEM

Individuals whose records are maintained (whether in a manual,
automated, or microform mode) in the Privacy Act system of records have
the very broad rights relative to them granted by the Privacy Act and
the Department regulations implementing that statute. These include a
right of access to the records, a right to request amendment and/or
correction of a record, a right to request a review of any refusal to
amend or correct a record, a right to have included in the record a
statement of reasons for the employee\'s disagreement with any refusal
to

amend or correct, and a right to have that statement included in any
disclosure of the disputed portion of the record. Information and
guidance on providing these rights to employees are contained in 5 CFR,
Part 297 and HHS Personnel Instruction 297-1.

(See Exhibit 293-3-A for detailed information on the release of records
in the EPF record system under the Privacy Act.)

293-3-60 DISPOSITION REQUIREMENTS

A. When the OPF of a [non-SES]{.underline} employee is sent to another
servicing personnel office within the Department, another Federal agency
or to the National Personnel Records Center, the EPF shall accompany the
OPF and include all performance ratings of record that are 4 years old
or less, including the performance plan on which the most recent rating
of record was based, and the summary rating prepared when the employee
changes positions. Prior to its transfer, the EPF will be purged of all
performance ratings and performance plans that are more than 4 years
old, and other performance-related records. These purged records are to
be disposed of in accordance with \"The Guide to Personnel
Recordkeeping\" (OPM Operating Manual) and 5 CFR, Part 293.

B.  When an SES member moves to another SES position, all appropriate
    performance-related documents five years old or less shall be
    forwarded in the EPF along with the individual's OPF.

Exhibit 293-3-A, Access to Employee Performance File System Records

A. [Access Under the Privacy Act]{.underline}

1\. Employee Performance File (EPF) system records are records within a
system of records for purposes of the Privacy Act. Therefore, all of the
rights and limitations conferred by that statute, and Office of
Personnel Management (OPM) and Department regulations and \"The Guide to
Personnel Recordkeeping\" (OPM Operating Manual, dated November 30,
1994, and March 15, 1996) apply to them (see HHS Personnel Instruction
297-1, Protection of Privacy in Personnel Records Systems).

2\. Instruction 293-3-60A details the rights of individuals whose
records are maintained in the Privacy Act system of records. In
addition, it is Department policy that employees receive from their
supervisors copies of performance plans, progress reviews, and
performance appraisals. Supporting documentation used in whole or in
part as a basis for a performance appraisal, or performance-based
action, is covered by the Privacy Act and must be released to the
employee to whom it pertains, if and when a proper Privacy Act request
is made by the employee. This includes personal \"supervisory\" notes
(memory joggers), unless:

a\. the Department and any of its components exercise no control over
them, [and]{.underline}

b\. their maintenance is not required under the applicable performance
appraisal system, [and]{.underline}

c\. they remain for the personal use of the author and are not provided
to any other persons, [and]{.underline}

d\. they are prepared, retained or discarded at the author's sole
discretion, [and]{.underline}

e\. they are not used in appraising an employee or in determining any
rights, benefits, or privileges of an employee.

If all of the above conditions are met, then such notes are considered
to be merely an extension of the supervisor's memory, not records or
documents subject to either the Freedom of Information Act (FOIA) or the
Privacy Act.

3\. The only other conditions under which EPF records may be disclosed,
under the Privacy Act, are the statutory conditions of disclosure in the
Privacy Act, codified at 5 U.S. Code 552a(b). The three most significant
of these allow the disclosure of EPF system records:

a\. to Department employees who need to have access to the records in
order to do their jobs;

b\. when their release is required under the FOIA; and

c\. for an established routine use. This is limited to those routine
uses established by OPM in the record system notice for EPF records.

B. [Access Under the FOIA]{.underline}

1\. The Privacy Act provides no authority to withhold information that
must be released under the FOIA.

2\. The FOIA (5 U.S. Code 552) and the Department regulations
implementing that statute (45 CFR, Part 5) require the release of
records and information maintained in the Department unless one of the
nine discretionary exceptions in the Acts (5 U.S. Code 552(b)(1)-(9)) or
any other statutory provision against disclosure can properly be claimed
as a basis for denying release.

3\. The principal FOIA exemption applicable to requests for EPF system
records is the (b)(6) exemption. This exempts from disclosure
\"personnel and medical files and similar files the disclosure of which
would constitute a clearly unwarranted invasion of personal privacy\" (5
U.S. Code 552(b)(6)). This exemption may be invoked [only]{.underline}
where there is an invasion of personal privacy that is
[clearly]{.underline} [unwarranted]{.underline}. In making this
determination a balancing of interests is undertaken. This balancing
involves on one side the potential severity of the privacy invasion to
the individuals mentioned in the records and on the other the public
interest to be served by disclosure.

4.  Only officials designated at 45 CFR, Part 5.32 are authorized to
    make a determination to release or deny records requested under the
    FOIA (see 45 CFR, Part 5.53).

5\. Release of any of the documents or information listed below is not a
clearly unwarranted invasion of the privacy of any individual.
Therefore, the (b)(6) FOIA exemption cannot be claimed as a basis to
withhold:

a\. information released in a form that is not personally identifiable;

b\. the gross salary of an employee and, if requested, each element of
the gross (i.e., base and comparability increase);

c\. performance objectives and plans (except actual evaluations recorded
on the same form);

d\. justification/nomination of employees who receive SES rank awards
and bonuses, and/or cash awards (except performance appraisal
documents); and

e\. the amount of SES bonuses and performance-based cash awards.

In certain limited circumstances, consideration may be given to
withholding certain EPF system documents or information if their release
would have an adverse impact on a Department component\'s programs or
mission and if one of the other eight discretionary exemptions in the
Act can be claimed as a basis for the withholding.

6\. Performance evaluation information on EPF system records and
documents is not to be released under the FOIA in a personally
identifiable form. The authority for this withholding is the (b)(6)
exemption discussed above. This authority would not apply to other
information on performance appraisal records and documents to which the
(b)(6) exemption does not apply. Remember that only a very limited
number of Department officials have the authority to release or deny
information requested under the FOIA. You must ensure that the
procedures for responding to FOIA requests established within your
component or region are followed.