[Federal Register Volume 88, Number 108 (Tuesday, June 6, 2023)]
[Proposed Rules]
[Pages 36980-36999]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 2023-09824]
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SOCIAL SECURITY ADMINISTRATION
20 CFR Part 402
[Docket No. SSA-2021-0049]
RIN 0960-AI07
Availability of Information and Records to the Public
AGENCY: Social Security Administration.
ACTION: Notice of proposed rulemaking.
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SUMMARY: The Social Security Administration (SSA) is proposing
revisions to our existing Freedom of Information Act (FOIA) regulations
to conform with the requirements of the FOIA Improvement Act of 2016.
The FOIA Improvement Act of 2016 requires Federal agencies to issue
regulations on procedures for disclosure of records consistent with the
amendments to the FOIA by such Act. We are also proposing the
reorganization of our FOIA regulation to make our FOIA procedures
easier for the public to understand and use.
DATES: To ensure that your comments are considered, we must receive
them no later than August 7, 2023.
ADDRESSES: You may submit comments by any one of three methods--
internet, fax, or mail. Do not submit the same comments multiple times
or by more than one method. Regardless of which method you choose,
please state that your comments refer to Docket No. SSA-2021-0049 so
that we may associate your comments with the correct regulation.
Caution: You should be careful to include in your comments only
information that you wish to make publicly available. We strongly urge
you not to include in your comments any personal information, such as
Social Security numbers or medical information.
1. Internet: We strongly recommend that you submit your comments
via the internet. Please visit the Federal eRulemaking portal at
https://www.regulations.gov. Use the Search function to find docket
number SSA-2021-0049. The system will issue a tracking number to
confirm your submission. You will not be able to view your comment
immediately because we must post each comment manually. It may take up
to a week for your comment to be viewable.
2. Fax: Fax comments to 833-410-1631.
3. Mail: Address your comments to the Office of Regulations and
Reports Clearance, Social Security Administration, 6401 Security
Boulevard, 3rd Floor (East) Altmeyer Building, Baltimore, Maryland
21235-6401.
Comments are available for public viewing on the Federal
eRulemaking portal at https://www.regulations.gov or in person, during
regular business hours, by arranging with the contact person identified
below.
FOR FURTHER INFORMATION CONTACT: Sarah Reagan, Office of Privacy and
Disclosure, Social Security Administration, WHR G401, 6401 Security
Boulevard, Baltimore, MD 21235, (410) 966-5855. For information on
eligibility or filing for benefits, call our national toll-free number,
1-800-772-1213, or TTY 1-800-325-0778, or visit our internet site,
Social Security Online, at https://www.ssa.gov.
[[Page 36981]]
SUPPLEMENTARY INFORMATION:
I. Background
The FOIA is a Federal statute that allows the public to request
records from the Federal government. The FOIA provides that any person
has a right, enforceable in court, to obtain access to federal agency
records subject to the FOIA, except to the extent that any portions of
such records are protected from public disclosure by one of nine
exemptions. Additionally, under the FOIA, agencies must make records
specified in 5 U.S.C. 552(a)(2) (e.g., instructional manuals issued to
our employees, general statements of policy, other materials used in
processing claims, etc.) available for public inspection in an
electronic format. The FOIA also statutorily requires Federal agencies
to annually report on numerous and various metrics to the Department of
Justice (DOJ).
Since the time the Social Security Administration (SSA) became an
agency independent of the Department of Health and Human Services,
Congress enacted two significant laws. These laws, the Openness
Promotes Effectiveness in our National Government Act of 2007 (OPEN
Government Act of 2007) \1\ and the FOIA Improvement Act of 2016,\2\
guide how agencies implement the requirements of the FOIA. Within this
notice of proposed rulemaking (NPRM), we are proposing updates and
revisions to our regulation at 20 CFR part 402 to conform with these
laws, as well as the FOIA Improvement Act of 2016's requirement to
issue regulations on procedures for disclosure of records in accordance
with its amendments.
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\1\ Public Law 110-175; https://www.congress.gov/bill/110th-congress/senate-bill/2488/text.
\2\ Public Law 114-185; https://www.congress.gov/bill/114th-congress/senate-bill/337/text.
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Based on our experience administering the FOIA, we propose updates
to our FOIA rules and regulation to clarify our FOIA processes for the
public. We propose comprehensive revisions to the entirety of 20 CFR
part 402 by reorganizing the content. This reorganization starts with
our FOIA policies and procedures for processing FOIA requests and
concludes with information on records available for public inspection.
Our revisions streamline our FOIA regulations at part 402 by creating
new sections, consolidating sections based on content, and revising
section headings to more clearly capture the information contained
therein. We also propose updates to reflect office name changes, as
well as general text changes consistent with the plain language
initiative.\3\
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\3\ The Plain Writing Act of 2010 requires Federal agencies to
use clear communication that the public can understand and use.
Federal agencies are required to follow plain language principles;
https://centerforplainlanguage.org/learning-training/five-steps-plain-language/. In fiscal year 2021, the Center for Plain Language
graded Federal agencies' Coronavirus Update pages and main FOIA web
pages. SSA received an overall grade of B+ and received positive
reviews on our FOIA main web page.
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Our proposed revisions to our FOIA regulation at 20 CFR part 402
underscore the guidelines on the FOIA that Attorney General Merrick
Garland issued within his March 2022 Memorandum for Heads of Executive
Departments and Agencies. As summarized by DOJ's Office of Information
Policy, Attorney General Garland's memorandum ``direct[s] the heads of
all executive branch departments and agencies to apply a presumption of
openness in administering the FOIA and make clear that the Justice
Department will not defend nondisclosure decisions that fail to do
so.'' Attorney General Garland stated that proactive disclosures are
``fundamental to the faithful application of FOIA,'' and advised
agencies of the need ``to remove barriers to access and to help
requesters understand the FOIA process and the nature and scope of the
records the agency maintains.''
In the sections that follow within this NPRM, we explain the
requirements of the OPEN Government Act of 2007 and the FOIA
Improvement Act of 2016. To visualize our proposed reorganization of
part 402, we provide a table that identifies the old (existing)
regulatory sections, the sections to which the content moved, and the
names of the new sections. Following the table is a section-by-section
summary wherein we identify changes we propose in compliance with the
OPEN Government Act of 2007 and FOIA Improvement Act of 2016, as well
as updates we propose for ease of understanding the agency's FOIA
policies and procedures.
II. The OPEN Government Act of 2007
As described below, the OPEN Government Act of 2007 amended the
FOIA by providing new procedural and reporting requirements agencies
must implement in their administration of the FOIA. It also codifies
existing FOIA practices, i.e., (1) all FOIA requests that will take
longer than 10 days to process must be assigned an individualized
tracking number and (2) agencies must provide requesters with a
telephone line or internet service from which requesters can receive
the status of their request(s).
To improve transparency and openness in government, the OPEN
Government Act of 2007 established the Office of Government Information
Services (OGIS) within the National Archives and Records Administration
that, among other duties, offers mediation services between FOIA
requesters and administrative agencies as an alternative to litigation.
It further directs agencies to designate a Chief FOIA Officer, who: (1)
has responsibility for FOIA compliance; (2) monitors FOIA
implementation; (3) makes recommendations to the agency head concerning
improvements to FOIA implementation; (4) reports to the Attorney
General, as requested, on the agency's FOIA implementation; (5)
facilitates public understanding of the purposes of FOIA's statutory
exemptions; and (6) designates one or more FOIA Public Liaisons. The
FOIA Public Liaison serves as an official to whom a FOIA requester can
raise concerns about service and is responsible for assisting in
reducing delays in FOIA request processing, helping resolve disputes,
and helping requesters understand the status of their requests.
The OPEN Government Act of 2007 also revised annual reporting
obligations, mandating reports on agency compliance with the FOIA to
include information on: (1) FOIA denials based upon particular
statutes; (2) response times; and (3) compliance by the agency and by
each principal component thereof. We are not codifying the statutory
reporting requirements of the Chief FOIA Officer within our proposed
revisions to part 402 because they do not affect our day-to-day
administration of the FOIA.
Regarding FOIA request processing, the OPEN Government Act of 2007
establishes changes to time limits: (1) specifies that the 20-day
period during which an agency must determine whether to comply with a
FOIA request begins on the date the request is received by the
appropriate component of the agency, but no later than 10 days after
the request is received by any component designated to receive FOIA
requests; (2) limits the circumstances under which the 20 business day
statutory time period may be ``tolled'' (or, more commonly known as
stopped or paused); and (3) prohibits an agency from assessing search
or duplication fees under the FOIA if it fails to comply with time
limits, provided that no unusual or exceptional circumstances apply.
Lastly, the OPEN Government Act of 2007 provides for the definition
of ``representative of the news media'' and
[[Page 36982]]
amends the definition of ``record'' to include any information
maintained by an agency contractor ``for the purposes of record
management.''
The changes we are proposing in our revised regulation to conform
with the requirements of the OPEN Government Act of 2007 are as
follows:
Within revised Sec. 402.60, we are updating and
clarifying the following business practices: our acknowledgement of
FOIA requests, when a request is considered perfected, our multi-
tracking procedures, unusual circumstances, and tolling of the 20
business day statutory time period;
Within revised Sec. Sec. 402.70 through 402.80, we are
revising our rules concerning fees;
Within revised Sec. Sec. 402.05 and 402.100, we are
introducing and providing information on the services of the FOIA
Public Liaison and OGIS; and
Within revised Sec. 402.10, we are defining
``representative of the news media,'' amending the definition of
``record,'' and defining new terms (such as the FOIA Public Liaison,
OGIS, and Chief FOIA Officer).
III. The FOIA Improvement Act of 2016
The FOIA Improvement Act of 2016 took effect on June 30, 2016, and
applies to any FOIA request made after the date of enactment. Its
intent is to improve agency transparency and responsiveness in
processing FOIA requests. The FOIA Improvement Act of 2016 codifies the
``foreseeable harm'' standard, establishing that agencies may only
withhold information if the agency reasonably foresees that disclosure
would harm an interest protected by a statutory exemption, or if
disclosure is prohibited by existing law.\4\ In other words, unless the
record is prohibited from disclosure by law, asserting a FOIA exemption
alone is not sufficient; an agency must also determine that release of
the record would cause foreseeable harm to others/interests protected
under the exemption.
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\4\ 5 U.S.C. 552(a)(8).
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The FOIA Improvement Act of 2016 also imposes numerous
administrative and procedural requirements upon Federal agencies. It
adds new elements to the annual reports that capture the number of
record denials and the number of records of general interest or use to
the public that are made available for public inspection. It also
creates new duties for the Chief FOIA Officer, requiring the Chief FOIA
Officer to (1) serve as the primary liaison between OGIS and the Office
of Information Policy at DOJ and (2) offer training to staff regarding
their FOIA responsibilities. Furthermore, it creates a council of Chief
FOIA Officers whose purpose is to improve agencies' administration of
the FOIA. Within our proposed revisions to part 402, we are not
addressing the additional reporting requirements provided in the FOIA
Improvement Act of 2016, as they do not affect our day-to-day
administration of the FOIA.
The FOIA Improvement Act of 2016 requires agencies to offer the
services of the FOIA Public Liaison and OGIS in all decision letters.
It further increases the time for appeals, now allowing requesters 90
days to file an administrative appeal of an adverse determination (as
opposed to 30 days). Additionally, the FOIA Improvement Act of 2016
codifies the ``rule of three,'' i.e., it requires agencies to make
available for public inspection in an electronic format records that
are of general interest or have been requested and released three or
more times.
In the realm of FOIA administration, the FOIA Improvement Act of
2016 prohibits an agency from charging search and/or duplication fees
under the FOIA for providing records if the agency misses a deadline
for complying with a FOIA request, unless unusual circumstances exist
and the agency takes certain action to notify the requester.
Additionally, it amends one of the privileges recognized under the FOIA
Exemption 5, i.e., the deliberative process privilege.\5\ The FOIA
Improvement Act of 2016 amended the deliberative process privilege of
Exemption 5 by providing that this privilege cannot be applied to
records that are 25 years or older at the time of the FOIA request.
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\5\ 5 U.S.C. 552(b)(5). For further information and discussion
on FOIA exemptions, we recommend Department of Justice Guide to the
Freedom of Information Act (https://www.justice.gov/oip/doj-guide-freedom-information-act-0).
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Finally, the FOIA Improvement Act of 2016 requires the head of each
agency to (1) review agency regulations and issue regulations on
procedures for disclosure of records in accordance with the amendments
made by the bill and (2) include in such regulations procedures for
engaging in dispute resolution through the FOIA Public Liaison and
OGIS.
The changes we are proposing in our revised regulation to conform
with the requirements of the FOIA Improvement Act of 2016 are as
follows:
Within revised Sec. Sec. 402.15(a) and 402.60(k), we are
adding the foreseeable harm standard;
Within revised Sec. 402.105, we are updating the appeal
timeframe to 90 days (from 30 days);
Within revised Sec. Sec. 402.05 and 402.100, discussed
earlier, we are addressing the FOIA Public Liaison and OGIS;
Within revised Sec. Sec. 402.70 through 402.80, we are
clarifying our fee charging rules, including when unusual circumstances
apply;
Within revised Sec. 402.135(a), we are revising the
deliberative process privilege to provide that this privilege cannot be
applied to records that are 25 years or older at the time of the FOIA
request; and,
Within revised Sec. 402.155(a), we are addressing our
public posting of records requested three or more times.
IV. The FOIA Process at SSA
SSA's FOIA workload is centrally processed by the Office of Privacy
and Disclosure (OPD), with a subset of requests processed by the
agency's Office of Central Operations, Division of Earnings and
Business Services (DEBS).\6\ As described in our proposed revisions to
20 CFR part 402, SSA categorizes FOIA requests as either simple or
complex, depending on the nature of the request and the estimated
processing time. All complex requests are handled by OPD. This means
that to process complex FOIA requests, OPD must coordinate with agency
components outside of OPD to retrieve information necessary for fee
notices and to receive responsive records for disclosure review under
the FOIA. Outside of OPD, each deputy commissioner component has at
least one FOIA Coordinator with whom OPD works with in our
administration of the FOIA.\7\ It is important to note that our
proposed revised regulation at 20 CFR part 402 does not change our
established FOIA business process for the agency's administration of
the FOIA. Our proposed revisions strengthen our FOIA process by making
our FOIA program administration easier for agency components outside of
OPD to understand through a revised, reorganized, and streamlined FOIA
regulation.
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\6\ DEBS processes all initial request for copies of decedents'
original Applications for a Social Security Card (SS-5) and Numident
records.
\7\ The agency's organization chart available at https://www.ssa.gov/org/ identifies each deputy commissioner component.
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When it comes to records release, OPD conducts a thorough review to
ensure proper disclosure under the FOIA. The complexity and nature of
each request determines the level of required review. The agency's FOIA
Officer makes the final determination on release of records in response
to initial requests. The OPD Executive Director is
[[Page 36983]]
the final authority on appeal determinations. As further stated in our
proposed revised regulations, we make available for public inspection
in an electronic format records that have been requested and released
three or more times and other specified records described in revised
Sec. 402.155. SSA's FOIA Reading Room, available at www.ssa.gov/FOIA,
is where OPD proactively posts agency records and records frequently
requested under the FOIA.
V. Section-by-Section Changes
20 CFR Part 402 Reorganization of Sections
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Reorganization of 20 CFR part 402
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Existing [rarr]
Existing section New New section
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402.5. Scope and purpose...... 402.5 [rarr] 402.05. Scope and
402.05. purpose of this
part.
402.10. Policy................ 402.10 [rarr] 402.10. Definitions.
402.15.
402.15. Relationship between 402.15 [rarr] 402.15. SSA's FOIA
the FOIA and the Privacy Act 402.20. policy.
of 1974.
402.20. Requests not handled 402.20 [rarr] 402.20. Relationship
under the FOIA. 402.45. between the FOIA and
the Privacy Act of
1974.
402.25. Referral of requests 402.25 [rarr] 402.25. Who can file
outside of SSA. 402.55. a FOIA request?
402.30. Definitions........... 402.30 [rarr] 402.30. Requirements
402.10. of a FOIA request.
402.35. Publication........... 402.35 [rarr] 402.35. Where to
402.160. submit a FOIA
request.
402.40. Publications for sale. 402.40 [rarr] 402.40. Requests for
402.165. deceased
individual's
records.
402.45. Availability of 402.45(a) [rarr] 402.45. Requests not
records. 402.05. processed under the
FOIA.
402.50. Availability of 402.50 removed... 402.50. FOIA
administrative staff manuals. Officer's authority.
402.55. Materials available at 402.55 [rarr] 402.55. Referrals and
district offices and branch 402.155. consultations.
offices.
402.60. Materials in field 402.60 [rarr] 402.60. How does SSA
offices of the Office of 402.155. process FOIA
Hearings and Appeals. requests?
402.65. Health care 402.65 removed... 402.65. Expedited
information. processing.
402.70. Reasons for 402.70 [rarr] 402.70. Fees
withholding some records. 402.95(b). associated with
processing FOIA
requests.
402.75. Exemption one for 402.75 [rarr] 402.75. FOIA fee
withholding records: National 402.115. schedule.
defense and foreign policy.
402.80. Exemption two for 402.80 [rarr] 402.80. Charging
withholding records: Internal 402.120. under section
personnel rules and practices. 1106(c) of the
Social Security Act.
402.85. Exemption three for 402.85 [rarr] 402.85. Waiver of
withholding records: Records 402.125. fees in the public
exempted by other statutes. interest.
402.90. Exemption four for 402.90 [rarr] 402.90. Notification
withholding records: Trade 402.130. of fees and
secrets and confidential prepayment
commercial or financial requirements.
information.
402.95. Exemption five for 402.95 [rarr] 402.95. Release of
withholding records: Internal 402.135. records.
memoranda.
402.100. Exemption six: 402.100 [rarr] 402.100. FOIA Public
Clearly unwarranted invasion 402.140. Liaison and the
of personal privacy. Office of Government
Information
Services.
402.105. Exemption seven for 402.105 [rarr] 402.105. Appeals of
withholding records: Law 402.145. the FOIA Officer's
enforcement. determination.
402.110. Exemption eight and 402.110 [rarr] 402.110. U.S.
nine for withholding records: 402.150. District Court
Records on financial action.
institutions; records on
wells.
402.115. Reserved............. Reserved [rarr] 402.115. The FOIA
New section Exemption 1:
402.115. National defense and
foreign policy.
402.120. Reserved............. Reserved [rarr] 402.120. The FOIA
New section Exemption 2:
402.120. Internal personnel
rules and policies.
402.125. Who may release a 402.125 [rarr] 402.125. The FOIA
record. 402.50. Exemption 3: Records
exempted under other
statutes.
402.130. How to request a 402.130 [rarr] 402.130. The FOIA
record. 402.35. Exemption 4: Trade
secrets and
confidential
commercial or
financial
information.
402.135. Where to send a 402.130 [rarr] 402.135. The FOIA
request. 402.30 and Exemption 5:
402.35. Internal documents.
402.140. How a request for a 402.140(a)-(c) 402.140. The FOIA
record is processed. [rarr] 402.60. Exemption 6: Clearly
402.140(d) [rarr] unwarranted invasion
402.65. of personal privacy.
402.145. Responding to your 402.145(d) [rarr] 402.145. The FOIA
request. 402.15(a)(2). Exemption 7: Law
402.145(a)-(c) enforcement.
[rarr] 402.60.
402.150. Release of records... 402.150 [rarr] 402.150. The FOIA
402.95. Exemptions 8 and 9:
Records on financial
institutions;
records on wells.
402.155. Fees to be charged-- 402.155 [rarr] 402.155. Records
categories of requests. 402.70-402.75. available for public
inspection.
402.160. Fees to be charged-- 402.160 [rarr] 402.160. Where
general provisions. 402.70-402.75. records are
published.
402.165. Fee schedule......... 402.165 [rarr] 402.165. Publications
402.75. for sale through the
Government
Publishing Office.
402.170. Fees for providing 402.170 [rarr] Transferred as Shown,
records and related services 402.80. and Unused in
for program purposes pursuant 402.170(b) [rarr] Revised part 402.
to section 1106 of the Social 402.85(d).
Security Act.
[[Page 36984]]
402.175. Fees for providing 402.175 [rarr] Transferred as Shown,
information and related 402.80. and Unused in
services for non-program Revised part 402.
purposes.
402.180. Procedure on 402.180 [rarr] Transferred as Shown,
assessing and collecting fees 402.90. and Unused in
for providing records. Revised part 402.
402.185. Waiver or reduction 402.185 [rarr] Transferred as Shown,
of fees in the public 402.85. and Unused in
interest. Revised part 402.
402.190. Officials who may 402.190 [rarr] Transferred as Shown,
deny a request for records 402.50. and Unused in
under FOIA. Revised part 402.
402.195. How a request is 402.195 [rarr] Transferred as Shown,
denied. 402.60. and Unused in
Revised part 402.
402.200. How to appeal a 402.200 [rarr] Transferred as Shown,
decision denying all or part 402.105. and Unused in
of a request. Revised part 402.
402.205. U.S. District Court 402.205 [rarr] Transferred as Shown,
Action. 402.110. and Unused in
Revised part 402.
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20 CFR 402.05
SSA is revising this section by changing the heading from ``Sec.
402.5. Scope and purpose'' to ``Sec. 402.05. Scope and purpose of this
part.'' We are maintaining much of the same language located in our
current regulation at Sec. 402.5, Scope and purpose; however, we are
revising the formatting by creating three paragraphs (a) through (c),
under which we enhance the information in this section. Under revised
paragraph (a) we are maintaining the first sentence of our current
regulation at Sec. 402.5, but we are further expanding on the FOIA by
including the FOIA's mandate to provide records unless exemptions apply
(located in our current regulation at Sec. 402.45(a), Availability of
records) and the requirement to make certain records available for
public inspection. In revised paragraph (b), we are revising the
formatting and content so the rules that this part of our regulations
will describe are provided in list form. The revised list introduces
the services of the FOIA Public Liaison and OGIS. Revised paragraph (c)
modifies the last sentence of our current regulation at Sec. 402.5 by
stating that nothing in part 402 supersedes the information located in
parts 401 and 403 of our regulations.
20 CFR 402.10
SSA is revising this section in its entirety, in both heading and
content. We are changing the heading of this section from ``Policy'' to
``Definitions.'' In addition to the definitions captured in our current
regulation at Sec. 402.30, Definitions, we are adding three new
definitions to explain two new positions and one new entity created by
the OPEN Government Act of 2007: Chief FOIA Officer, FOIA Public
Liaison, and OGIS. The OPEN Government Act of 2007 also amends the
definition of ``records'' and provides for the definition of
``representative of the news media''; therefore, both items are
addressed within this revised section. To promote openness in
government, we are updating existing definitions and adding definitions
of terms we use regularly in our administration of the FOIA. The new
terms we are including in this section are: commercial interest;
component; expedited processing; exemption; fee category; fee waiver;
FOIA request; Numident; Office of the General Counsel (OGC); Office of
Privacy and Disclosure (OPD); online FOIA portal; other requester;
production; reading room; redact; special services; SSA; SS-5;
Submitter; tolling; trade secrets and commercial or financial
information. Finally, we are deleting the definition of ``frequently
requested records''; it is no longer needed given the requirement to
publicly post records requested three or more times (as stated in
revised Sec. 402.15, SSA's FOIA policy).
20 CFR 402.15
We are revising this section in its entirety, in both heading and
content. We are changing the heading from ``Relationship between the
FOIA and the Privacy Act of 1974'' to ``SSA's FOIA policy.'' We are
deleting the language from paragraph (a)(1) as the general policy
statement is extraneous. Otherwise, we are maintaining the information
captured in our current regulation at Sec. 402.10, Policy, with
modifications. This revised section is comprised of paragraphs (a)
through (d): paragraph (a) provides new information that acknowledges
our presumption of openness, meaning that we will withhold information
only if disclosure would cause foreseeable harm, as codified in the
FOIA Improvement Act of 2016, or if the disclosure is prohibited by
law; paragraphs (b) and (c) provide new language that advises where in
our revised regulation the public may find information about the FOIA
Officer's authority to release and withhold records and records that
are available for public inspection; and paragraph (d) captures
language located in our existing regulation at Sec. 402.145(d),
Responding to your request, wherein we state that the FOIA does not
require us to perform research or answer questions.
20 CFR 402.20
We are revising this section in its entirety, in both heading and
content. We are changing the heading from ``Requests not handled under
the FOIA'' to ``Relationship between the FOIA and the Privacy Act of
1974.'' We are maintaining much of the existing information regarding
the overall relationship between both laws, as captured in our existing
regulation at paragraphs (a) and (b) of Sec. 402.15, Relationship
between the FOIA and the Privacy Act of 1974; however, we are removing
paragraph (c) concerning how we process requests with consent. Within
revised paragraph (b), we are clarifying when we will handle an
individual's access request under the Privacy Act and when it will be
handled under the FOIA.
20 CFR 402.25
We are revising this section in its entirety, in both heading and
content. We are changing the heading from ``Referral of requests
outside of SSA'' to ``Who can file a FOIA request?'' For transparency,
we are creating this new section to clearly address who can file a FOIA
request.
[[Page 36985]]
20 CFR 402.30
We are revising this section in its entirety, in both heading and
content. We are changing the heading from ``Definitions'' to
``Requirements of a FOIA request.'' To promote transparency in our
procedural requirements, we are creating this new section wherein we
are providing a numbered list of criteria that must be met in order for
a request to be considered a FOIA request subject to the rules
discussed in this part.
20 CFR 402.35
We are revising this section in its entirety, in both heading and
content. We are changing the heading from ``Publication'' to ``Where to
submit a FOIA request.'' We are updating the information in our
existing regulation at Sec. 402.135, Where to send a request, to
reflect the correct name of the Office of Privacy and Disclosure from
the Office of Public Disclosure. Furthermore, we are adding the options
to submit requests online, via email, and by fax. Finally, given the
high number of requests we receive for copies of deceased individual's
original Applications for a Social Security Card (SS-5) and Numident
records, we are providing new information on where to submit requests
of this nature.
20 CFR 402.40
We are revising this section in its entirety, in both heading and
content. We are changing the heading from ``Publications for sale'' to
``Requests for deceased individual's records.'' To promote openness in
government and transparency in our FOIA administration, we are creating
this new section so requesters are aware of our rules regarding the
disclosure of decedents' records. We list acceptable proofs of death
that requesters may provide with their requests and further describe
how we process requests when acceptable proofs of death are not
provided or we have questions about the authenticity of the proof
provided.
20 CFR 402.45
We are revising this section in its entirety, in both heading and
content. We are changing the heading from ``Availability of records''
to ``Requests not processed under the FOIA.'' We are maintaining the
information captured in our existing regulation at paragraphs (a) and
(b) at Sec. 402.20, Requests not handled under the FOIA, with slight
modifications to paragraph (a) by removing the last phrase of the first
sentence and the full second sentence. We are also adding paragraphs
(c) and (d). Under newly added paragraph (c), we state that we will not
handle your request under the FOIA and the rules in this part if you
are seeking earnings records covered by our regulations at 20 CFR
422.125. Under newly added paragraph (d), we explain that we will not
process a request under the FOIA that does not meet the requirements of
a FOIA request as defined in revised Sec. 402.30.
20 CFR 402.50
We are revising this section in its entirety, in both heading and
content. We are changing the heading from ``Availability of
administrative staff manuals'' to ``FOIA Officer's authority.'' We are
revising the language from our existing regulation at Sec. 402.125,
Who may release a record, by updating the name of the Office of Public
Disclosure to the Office of Privacy and Disclosure. Within newly formed
paragraphs (a) and (b), we are also revising and adding language that
describes what determinations the FOIA Officer is authorized to make
(paragraph (a)) and in paragraph (b), clarifying that the FOIA
Officer's determination is provided in writing and, if the requester
disagrees with the FOIA Officer's determination, the requester may
appeal as described in revised Sec. 402.105.
20 CFR 402.55
We are revising this section in its entirety, in both heading and
content. We are changing the heading from ``Materials available at
district offices and branch offices'' to ``Referrals and
consultations.'' Within newly created paragraphs (a) through (c), we
are revising the information located in our existing regulation at
Sec. 402.25, Referral of requests outside of SSA, by clarifying under
paragraph (a)(1) that when making a referral to another Federal agency,
we will ask the other agency to process the request or portion of the
request for records that originated with that agency. We are also
providing new information in paragraphs (a)(2), (b), and (c) to explain
how we handle records that originated with another agency when that
other agency is not subject to the FOIA (paragraph (a)(2)); when we
will advise a requester to submit their request to another agency
(paragraph (b)); and our consultations with another entity (paragraph
(c)).
20 CFR 402.60
We are revising this section in its entirety, in both heading and
content. We are changing its heading from ``Materials in field offices
of the Office of Hearings and Appeals'' to ``How does SSA process FOIA
requests?'' This section modifies the information currently captured in
several sections of our existing regulation, identified below, with the
primary revision being to Sec. 402.145, Responding to your request, of
our existing regulation. This new section is comprised of paragraphs
(a) through (l) that capture the following: our acknowledgment of FOIA
requests (new content); when a request is considered ``perfected'' (new
content); where to find information in our regulation concerning
expedited processing; our multi-tracking procedures, i.e., labeling
requests as either simple or complex, which updates the tracking
located in our existing regulation at Sec. 402.140(c), How a request
for a record is processed; what constitutes unusual circumstances,
located in our existing regulation at Sec. 402.140(a) and (b); our
ability to aggregate requests, located in our existing regulation at
Sec. 402.180(c), Procedure on assessing and collecting fees for
providing records; fee information that is discussed in separate
identified sections of the revised regulation (fee information is
located in our existing regulation from Sec. Sec. 402.155 through
402.185); our ability to stop or ``toll'' the 20 business day statutory
period (new content); records retrieval information, located in our
existing regulation at Sec. 402.145(a), Responding to your request;
unproductive searches, located in our existing regulation at Sec.
402.195(c), How a request is denied; and furnishing records, located in
our existing regulation at Sec. 402.145(b), Responding to your
request. We are removing information regarding our deletion of records
exempt from disclosure located in our existing regulation at Sec.
402.145(c). We do not delete exempt records; if information within a
responsive record(s) is exempt from disclosure, it is redacted and the
applicable FOIA exemption(s) are noted within the redacted cell (as
explained in this revised section at paragraph (k)); and burdensome
requests, wherein we explain that we will not process a request when
doing so would be unduly burdensome on the agency to process.
20 CFR 402.65
We are revising this section in its entirety, in both heading and
content. We are changing the heading from ``Health care information''
to ``Expedited processing.'' We are removing the health care
information from our regulation because there is no need for it. Health
care information, if maintained by SSA, is considered an SSA record.
Within the newly added Sec. 402.65, we are incorporating language from
Sec. 402.140(d), How a request for a record is processed, with updates
that
[[Page 36986]]
revise the formatting into two paragraphs wherein, under paragraph (a),
we list and update what constitutes a ``compelling need'' and, under
paragraph (b), we add language advising requesters of their right to
appeal the FOIA Officer's expedited processing determination.
20 CFR 402.70
We are revising this section in its entirety, in both heading and
content. We are changing the heading from ``Reasons for withholding
some records'' to ``Fees associated with processing FOIA requests.''
This new section is comprised of paragraphs (a) and (b). These
authorities include the FOIA fee categories (currently addressed in our
existing regulation at Sec. 402.155, Fees to be charged--categories of
requests) and the fees we may charge under our authority of section
1106(c) of the Social Security Act (currently addressed in our existing
regulation at Sec. 402.175(a), Fees for providing information and
related services for non-program purposes). We are also adding the
language located in our existing regulation at Sec. 402.160(a), Fees
to be charged--general provisions, to the last sentence in paragraph
(b) of this revised section. Under revised paragraph (b), we explain
the hourly rate at which we charge requesters for performing search and
review associated with processing FOIA requests (currently addressed in
our existing regulation at Sec. 402.165(a), Fee schedule). Within the
hourly rate information, we are adding information concerning our
charge when the search and/or review for records is performed by
contractors. We also clarify that the hourly rate is charged in 15
minute increments, which is consistent with how agency employees accrue
time and leave. In subsequent sections of the revised regulation, we
expand on the FOIA fee schedule and the agency's charging under section
1106(c) of the Social Security Act.
20 CFR 402.75
We are revising this section in its entirety, in both heading and
content. We are changing the heading from ``Exemption one for
withholding records: National defense and foreign policy'' to ``FOIA
fee schedule.'' We are maintaining much of the information from our
existing regulation at Sec. 402.155, Fees to be charged--categories of
requests, and Sec. 402.165, Fee schedule. This new section is
comprised of paragraphs (a) through (e). In paragraph (a) of the
revised section, we are updating the language located in our existing
regulation at Sec. 402.155 for plain language writing principles. In
paragraph (b) of the revised section, we are revising our certification
information that is currently located in our existing regulation at
Sec. 402.165(e). Paragraph (c) lists information concerning records
production and duplication. In paragraph (c)(1), we are providing new
information describing our production and duplication of electronic
records and databases. In paragraphs (c)(2) and (3), we are maintaining
much of the same language regarding photocopying standard and odd-sized
documents that is located in our existing regulation at Sec.
402.165(c) and (d). In paragraph (d) of the revised section, we are
maintaining the information located in our existing regulation at Sec.
402.165(h). In paragraph (e) of the revised section, we advise where in
our regulation requesters may find information regarding fee waivers
(i.e., revised Sec. 402.85 regarding fee waivers). The information
located in our existing regulation at Sec. 402.160(b) and (c), Fees to
be charged--general provisions, is no longer necessary given our
revisions to this revised section.
20 CFR 402.80
We are revising this section in its entirety, in both heading and
content. We are changing the heading from ``Exemption two for
withholding records: Internal personnel rules and practices'' to
``Charging under section 1106(c) of the Social Security Act.'' To draft
this new section, we are combining the information from the existing
regulation at Sec. 402.170, Fees for providing records and related
services for program purposes pursuant to section 1106 of the Social
Security Act, and 402.175, Fees for providing information and related
services for non-program purposes, into this one new section. This new
section is comprised of one introductory paragraph followed by
paragraphs (a) through (e) that explain our charging under section
1106(c) of the Social Security Act. In paragraph (a) of this new
section, we expand on the language located in our existing regulation
at Sec. 402.175(c) describing in a non-inclusive list what constitutes
``full cost'': search; review; production and duplication of record(s);
certification; employee's time; forwarding/delivering materials; and
performing other special services. In paragraph (b) of this new
section, we are adding new language explaining when the agency will not
charge, i.e., when the cost of the service is less than the cost of
sending the bill. In paragraph (c) of this new section, we are adding
new language explaining that the information in this part does not
revoke, modify, or supersede the schedule of standard administrative
fees that the agency charges for specified non-program information
requests. In paragraph (d)(1) of this new section, we are clarifying
the criteria we use to determine if a request is program-related
(located in our existing regulation at Sec. 402.170(a)) to explain
what types of programs are referenced. Under paragraph (d)(2), we are
clarifying our case-by-case review process that is located in our
existing regulation at Sec. 402.170(a)(2)(D)(ii). In paragraph (e) of
this new section, we provide new information describing how requesters
may appeal the FOIA Officer's non-program determination.
20 CFR 402.85
We are revising this section in its entirety, in both heading and
content. We are changing the heading from ``Exemption three for
withholding records: Records exempted by other statutes'' to ``Waiver
of fees in the public interest.'' The content of this section maintains
much of the language found in our existing regulation at Sec. 402.185,
Waiver or reduction of fees in the public interest; however, we are
clarifying the information in revised paragraphs (a) through (d).
Before paragraph (a), we are providing an introductory paragraph that
maintains the information captured in our existing regulation at Sec.
402.185(a)(1) and (2); however, we are also adding new language to
explain that we will consider waiver under this regulation whether the
agency charges under the FOIA's fee schedule or section 1106(c) of the
Social Security Act. Under revised paragraph (a), we are providing the
procedure for requesting a fee waiver or reduction that is located in
our existing regulation at Sec. 402.185(e). Within revised paragraph
(b), we revised the public interest criteria that is in our existing
regulation at Sec. 402.185(b)(1) through (4). Within revised paragraph
(b), we removed existing paragraph (b)(3), and now list three criteria
for public interest instead of four. Under revised paragraph (c), we
explain what it means to be ``not primarily in the requester's
commercial interest'' and provide the two factors we consider. This
information is taken from our existing regulation at Sec. 402.185(c).
Under revised Sec. 402.85(d), we are adding new language providing
notice that the agency reserves the right to charge a fee if special
services are needed to provide the requested records, which we
transferred from our existing regulation at Sec. 402.170(b), Fees for
providing records and related services for program purposes pursuant to
section 1106 of the Social Security
[[Page 36987]]
Act. Finally, revised paragraph (e) maintains the information located
in our existing regulation at Sec. 402.185(d).
20 CFR 402.90
We are revising this section in its entirety, in both heading and
content. We are changing the heading from ``Exemption four for
withholding records: Trade secrets and confidential commercial or
financial information'' to ``Notification of fees and prepayment
requirements.'' Within paragraphs (a) through (e) of this new section,
we are updating the procedure on assessing and collecting fees for
providing records, as currently captured in our existing regulation in
Sec. 402.180, Procedure on assessing and collecting fees for providing
records. Before paragraph (a), we have an introductory statement that
advises the rules in this part apply whether we are processing your
request under the FOIA fee schedule or section 1106(c) of the Social
Security Act. The information in this new section explains: OPD's
issuance of fee notices (paragraph (a)); our requirement that
requesters agree to pay the estimated fee and provide payment
information in advance of the search (paragraph (b)); when OPD will
issue revised fee notices(in paragraphs (c)(1) and (2)); when the
requester will be notified of the revised fee notice and that the
requester can appeal the revised fee notice (in paragraphs (c)(3) and
(4)); our process of administratively closing requests if payment
information is not received within 30 calendar days from the date of
the fee notice (paragraph (d)); and the method of payments we accept
(paragraph (e)). Regarding paragraph (e), we are updating the
information located in our existing regulation at Sec. 402.108(d) by
adding credit cards as a method of payment.
20 CFR 402.95
We are revising this section in its entirety, in both heading and
content. We are changing the heading from ``Exemption five for
withholding records: Internal memoranda'' to ``Release of records.''
This revised section modifies, in part, and combines information from
various sections of our existing regulation. This revised section is
comprised of paragraphs (a) through (d): in paragraph (a) we are
clarifying our rules concerning records previously released, located in
paragraph (a), Records previously released, in our existing regulation
at Sec. 402.150(a), Release of records; paragraph (b) maintains the
information located in our existing regulation at Sec. 402.70, Reasons
for withholding some records; paragraph (c) clarifies the language
about our FOIA electronic reading room that is located in our existing
regulation at Sec. 402.45(d), Availability of records; and paragraph
(d) maintains the language located in our existing regulation at Sec.
402.150(b) concerning poor copies.
20 CFR 402.100
We are revising this section in its entirety, in both heading and
content. We are changing the heading from ``Exemption six: Clearly
unwarranted invasion of personal privacy'' to ``FOIA Public Liaison and
Office of Government Information Services.'' Under this new section, we
are providing requesters with information on how to seek the services
of the FOIA Public Liaison and OGIS.
20 CFR 402.105
We are revising this section in its entirety, in both heading and
content. We are changing the heading from ``Exemption seven for
withholding records: Law enforcement'' to ``Appeals of the FOIA
Officer's determination.'' Our revisions update the information located
in our existing regulation at Sec. 402.200, How to appeal a decision
denying all or part of a request, in newly created paragraphs (a)
through (e). Paragraph (a) updates the existing paragraph (a) at Sec.
402.200 by changing the appeal period from 30 days to 90 days and
clarifying that the Executive Director for the Office of Privacy and
Disclosure (OPD) responds to appeals of the FOIA Officer's
determinations. Under paragraph (b), we are adding language concerning
our acknowledgement of appeals and paragraph (c) provides clarifying
information located in our existing regulation at 402.200(b),
concerning how long we generally take to process appeals. Under
paragraph (d), we are modifying the language in our existing regulation
at Sec. 402.200(c) by adding information explaining that the Chief
FOIA Officer delegated the authority to make appeal determinations to
the Executive Director for OPD. Finally, paragraph (e) simplifies the
language in our existing regulation at Sec. 402.200(b) by advising
requesters of their right to seek review in a U.S. District Court if
they disagree with the appeal determination.
20 CFR 402.110
We are revising this section in its entirety, in both heading and
content. We are changing the heading from ``Exemptions eight and nine
for withholding records: Records on financial institutions; records on
wells'' to ``U.S. District Court action.'' We are updating the
information located in our existing regulation at Sec. 402.205, U.S.
District Court action, by changing the language to clarify that the
Executive Director for the Office of Privacy and Disclosure makes the
final decision in response to appeals. If requesters disagree with the
Executive Director's final decision, they may ask the District Court to
review the decision.
20 CFR 402.115
This section of our existing regulation is currently reserved. We
are now utilizing this section. The new heading is ``The FOIA Exemption
1: National defense and foreign policy.'' We are modifying the language
located in our existing regulation at Sec. 402.75, Exemption one for
withholding records: National defense and foreign policy, by making
minor edits to the first sentence and removing the last two sentences,
in full. Our edits simplify the explanation of this exemption.
20 CFR 402.120
This section of our existing regulation is currently reserved. We
are now utilizing this section; the new heading is ``The FOIA Exemption
2: Internal personnel rules and practices.'' We are updating the
information about Exemption 2 located in our existing regulation at
Sec. 402.80, Exemption two for withholding records: Internal personnel
rules and practices, by changing the examples of records generally
withheld under this exemption.
20 CFR 402.125
We are revising this section in its entirety, in both heading and
content. We are changing the heading from ``Who may release a record''
to ``The FOIA Exemption 3: Records exempted by other statutes.'' We are
updating the Exemption 3 language located in our existing regulation at
Sec. 402.85, Exemption three for withholding records: Records exempted
by other statutes, by changing the formatting from one paragraph to
two: paragraph (a) explains the exemption (using the language located
in our existing regulation at Sec. 402.85) and paragraph (b) provides
two examples of the statutes that prohibit disclosure of information,
one of which is a new example about disclosure of decedents'
information.
20 CFR 402.130
We are revising this section in its entirety, in both heading and
content. We are changing the heading from ``How to request a record''
to ``The FOIA Exemption 4: Trade secrets and confidential commercial or
financial information.'' We are substantially
[[Page 36988]]
updating our Exemption 4 language located in our existing regulation at
Sec. 402.90, Exemption four for withholding records: Trade secrets and
confidential commercial or financial information. This revised section
is comprised of paragraphs (a) through (c): (a) Steps of submitters
notice; (a)(1) The submitter's notice; (a)(2) Submitter's opportunity
to object to disclosure; (a)(3) Notice of intent to disclose; (b)
Notice of FOIA lawsuit; and (c) Requester notification. Paragraphs (a)
through (c) of our existing regulation at Sec. 402.90 contain
definitions of terms that we relocated to the revised regulation Sec.
402.10, Definitions. Our revised Exemption 4 information updates the
information located in our existing regulation at Sec. 402.90(d)
through (f), making the information easier for the public to follow.
20 CFR 402.135
We are revising this section in its entirety, in both heading and
content. We are changing the heading from ``Where to send a request''
to ``The FOIA Exemption 5: Internal documents.'' We are revising the
Exemption 5 language located in our existing regulation at Sec.
402.95, Exemption five for withholding records: Internal memoranda, to
reflect case law that defines the exemption more broadly to include
records beyond internal government communications and notes. We are
maintaining the same formatting as our existing regulation at Sec.
402.95 wherein we describe the following privileges in paragraphs (a)
through (c): paragraph (a) Deliberative process privilege; paragraph
(b) Attorney work product privilege; and paragraph (c) Attorney-client
communications privilege. In paragraph (a), we are editing the language
for clarity and also adding information regarding the 25-year sunset on
records exempt under the deliberative process privilege. In paragraphs
(b) and (c), we are clarifying the attorney work product and attorney-
client communications privileges by simplifying the language and
descriptions of each.
20 CFR 402.140
We are revising this section in its entirety, in both heading and
content. We are changing the heading from ``How a request for a record
is processed'' to ``The FOIA Exemption 6: Clearly unwarranted invasion
of personal privacy.'' In this revised section, we are slightly
modifying the formatting from our existing regulation at Sec. 402.100,
Exemption six: Clearly unwarranted invasion of personal privacy, by
adding an introductory sentence and updating the language in paragraphs
(a) through (c). The introductory sentence maintains the information
from paragraph (a) of the existing regulation located at Sec.
402.100(a). Revised paragraph (a) slightly modifies the balancing test
information that is located in our existing regulation at Sec.
402.100(b), i.e., we are removing the last sentence as it is
extraneous. Revised paragraph (b) updates the information located in
our existing regulation at Sec. 402.45(e), Availability of records,
concerning the disclosure of agency employees' information.
Specifically, we changed ``telephone numbers'' to ``contact
information,'' when explaining what information about SSA employees is
typically withheld under the FOIA Exemption 6. Under revised paragraph
(c), we are updating the examples of records frequently withheld under
Exemption 6.
20 CFR 402.145
We are revising this section in its entirety, in both heading and
content. We are changing the heading from ``Responding to your
request'' to ``The FOIA Exemption 7: Law enforcement.'' We are
maintaining much of the language located in our existing regulation at
Sec. 402.105, Exemption seven for withholding records: Law
enforcement. Our revisions simply clarify the parts of Exemption 7 that
correlate to paragraphs (a) through (f): paragraph (a) explains the
FOIA Exemption 7(A); paragraph (b) explains the FOIA Exemption 7(B);
paragraph (c) explains the FOIA Exemption 7(C); paragraph (d) explains
the FOIA Exemption 7(D); paragraph (e) explains the FOIA Exemption
7(E); and, paragraph (f) explain the FOIA Exemption 7(F).
20 CFR 402.150
We are revising this section in its entirety, in both heading and
content. We are changing the heading from ``Release of records'' to
``The FOIA Exemptions 8 and 9: Records on financial institutions;
records on wells.'' The only change to this section is its relocation.
We are maintaining the same information on both of these exemptions
that is currently located in our existing regulation at Sec. 402.110,
Exemptions eight and nine for withholding records: Records on financial
situations; records on wells.
20 CFR 402.155
We are revising this section in its entirety, in both heading and
content. We are changing the heading from ``Fees to be charged--
categories of requests'' to ``Records available for public
inspection.'' Within this new section, we are combining the information
located in our existing regulation in Sec. 402.45(b) and (c),
Availability of records, Sec. 402.55, Materials available at district
offices and branch offices, and Sec. 402.60, Materials in field office
of the Office of Hearings and Appeals, within newly created paragraphs
(a) through (c). Paragraphs (a) and (b) update the information located
in our existing regulation at Sec. 402.45(b) and (c). Under paragraph
(a), we are listing the records SSA is required to make available for
public inspection in electronic format. Under paragraph (b), we are
clarifying the ``record citation as precedent'' language in our
existing regulation at Sec. 402.45(c). The newly created paragraph (c)
updates information located in our existing regulation at Sec. Sec.
402.55 and 402.60. We are updating the list of records that are
available for public inspection and further advising that said records
are available electronically rather than available for viewing at our
field offices and hearings offices. Given these edits, the information
located in our existing regulation at Sec. 402.50, Availability of
administrative staff manuals, is no longer relevant.
20 CFR 402.160
We are revising this section in its entirety, in both heading and
content. We are changing the heading from ``Fees to be charged--general
provisions'' to ``Where records are published.'' Within this section,
we are maintaining the information located in our existing regulation
at Sec. 402.35, Publication, paragraphs (a) and (b); however, we are
removing paragraphs (c) and (d) from Sec. 402.35, as this information
is accounted for within revised Sec. 402.155, Records available for
public inspection.
20 CFR 402.165
We are revising this section in its entirety, in both heading and
content. We are changing the heading from ``Fee schedule'' to
``Publications for sale through the Government Publishing Office.'' We
are revising the information located in our existing regulation at
Sec. 402.40, Publications for sale, by updating the name from
Government Printing Office to the Government Publishing Office (GPO)
and adding language to account for GPO's electronic bookstore from
which the public may order various publications that we are capturing
in an updated list of documents available for sale.
Rulemaking Analyses and Notices
We will consider all comments we receive on or before the close of
[[Page 36989]]
business on the comment closing date indicated above. The comments will
be available for examination in the rulemaking docket for these rules
at the above address. We will file comments received after the comment
closing date in the docket and will consider those comments to the
extent practicable. However, we will not respond specifically to
untimely comments. We may publish a final rule at any time after close
of the comment period.
Clarity of These Proposed Rules
Executive Order 12866, as supplemented by Executive Order 13563,
requires each agency to write all rules in plain language. In addition
to your substantive comments on these proposed rules, we invite your
comments on how to make them easier to understand.
For example:
Would more, but shorter, sections be better?
Are the requirements in the rules clearly stated?
Have we organized the material to suit your needs?
Could we improve clarity by adding tables, lists, or
diagrams?
What else could we do to make the rules easier to
understand?
Do the rules contain technical language or jargon that is
not clear?
Would a different format make the rules easier to
understand, e.g., grouping and order of sections, use of headings,
paragraphing?
When will we start to use this proposed rule?
We will not use this proposed rule until we evaluate public
comments and publish a final rule in the Federal Register. All final
rules include an effective date. We will continue to use our current
rules until that date. If we publish a final rule, we will include a
summary of those relevant comments we received along with responses and
an explanation of how we will apply the new rule.
Regulatory Procedures
Executive Order 12866, as Supplemented by Executive Order 13563
We consulted with the Office of Management and Budget (OMB) and
determined that this rule meets the criteria for a significant
regulatory action under Executive Order 12866, as supplemented by
Executive Oder 13563. Therefore, OMB reviewed it.
Anticipated Costs to Our Program
The Office of the Chief Actuary estimates that there are no direct
effects on scheduled Old-Age, Survivors, and Disability Insurance
(OASDI) benefit payments and Federal Supplemental Security Income (SSI)
payments.
Anticipated Administrative Benefits to the Social Security
Administration
The Office of Budget, Finance, and Management estimates an
administrative effect of less than 15 workyears and $2 million
annually.
Anticipated Qualitative Benefits
We anticipate qualitative benefits from the proposed revisions to
the FOIA regulation from streamlined and clarified FOIA policies and
procedures. We expect the clarified regulations would benefit both SSA
and the public because the administration of the FOIA for SSA and our
public customers would be better organized and easier to follow. The
purpose of the FOIA is to provide the public with access to government
records, and administrative transparency is paramount to a successful
FOIA program. Since the FOIA is processed centrally at SSA, our
regulation must be easy for agency employees to understand so
components outside of OPD understand the importance of the FOIA and
their roles in the agency's administration of the FOIA. When our
policies are clear for agency employees, we are able to process FOIA
requests in a more efficient manner, which benefits both the agency and
the public.
Our revised regulation at part 402 provides information in a
cascading fashion that is easier to follow than our existing
regulation, and accurately reflects amendments implemented by the FOIA
Improvement Act of 2016. Our proposed revisions account for the roles
of the FOIA Public Liaison and OGIS, which is useful for correct points
of contact internally and for the public, increasing efficiency and
lowering confusion. The proposed revisions also update inaccurate
information, such as the timeframe for the public to appeal adverse
decisions, which presently state 30 days, but is 90 days under the FOIA
Improvement Act of 2016.
The FOIA is designed to build trust between the public and Federal
agencies. SSA's revised regulation at 20 CFR part 402 strengthens this
trust with transparency by explaining in plain language how SSA
processes FOIA requests and appeals, and further describes our
proactive posting of agency records. Clear communication with the
public is paramount to our administration of the FOIA. Updating and
revising our FOIA regulation serves to enhance our communication with
the public, making it easier for the public to know how to submit FOIA
requests and where to review proactively posted records.
Executive Order 13132 (Federalism)
We analyzed this proposed rule in accordance with the principles
and criteria established by Executive Order 13132, and determined that
the proposed rule will not have sufficient federalism implications to
warrant the preparation of a federalism assessment. We also determined
that this proposed rule will not preempt any State law or State
regulation or affect the States' abilities to discharge traditional
State governmental functions.
Regulatory Flexibility Act
We certify that these proposed rules will not have a significant
economic impact on a substantial number of small entities because they
affect individuals only. Therefore, a regulatory flexibility analysis
is not required under the Regulatory Flexibility Act, as amended.
Paperwork Reduction Act
While these proposed rules mention the public reporting
requirements for the public to submit FOIA requests to the agency, we
already obtained OMB approval for these public reporting requirements
under the current OMB approved information collections for 0960-0566
(SSA 3288) and 0960-0665 (SSA-711 and Online FOIA Request). As we
already cover these requirements under OMB-approved information
collections, and these revised rules merely move those requirements to
new CFR citations but do not change them, these revised rules will not
require Office of Management and Budget approval under the Paperwork
Reduction Act. Rather, upon publication of the final rule, we will
submit Change Requests to update the CFR citations for OMB No. 0960-
0566 and 0960-0665.
(Catalog of Federal Domestic Assistance Program Nos. 96.001, Social
Security--Disability Insurance; 96.002, Social Security--Retirement
Insurance; 96.004, Social Security--Survivors Insurance; and 96.006,
Supplemental Security Income).
List of Subjects in 20 CFR Part 402
Administrative practice and procedure, Freedom of information.
The Acting Commissioner of Social Security, Kilolo Kijakazi, Ph.D.,
M.S.W., having reviewed and approved this document, is delegating the
authority to electronically sign this document to Faye I. Lipsky, who
is the primary Federal Register Liaison for SSA, for
[[Page 36990]]
purposes of publication in the Federal Register.
Faye I. Lipsky,
Federal Register Liaison, Office of Legislation and Congressional
Affairs, Social Security Administration.
0
For the reasons set forth in the preamble, the Social Security
Administration proposes to revise 20 CFR part 402 to read as follows:
PART 402--AVAILABILITY OF INFORMATION AND RECORDS TO THE PUBLIC
Sec.
402.05 Scope and purpose of this part.
402.10 Definitions.
402.15 SSA's FOIA policy.
402.20 Relationship between the FOIA and the Privacy Act of 1974.
402.25 Who can file a FOIA request?
402.30 Requirements of a FOIA request.
402.35 Where to submit a FOIA request.
402.40 Requests for deceased individual's records.
402.45 Requests not processed under the FOIA.
402.50 FOIA Officer's authority.
402.55 Referrals and consultations.
402.60 How does SSA process FOIA requests?
402.65 Expedited processing.
402.70 Fees associated with processing FOIA requests.
402.75 FOIA fee schedule.
402.80 Charging under section 1106(c) of the Social Security Act.
402.85 Waiver of fees in the public interest.
402.90 Notification of fees and prepayment requirements.
402.95 Release of records.
402.100 FOIA Public Liaison and the Office of Government Information
Services.
402.105 Appeals of the FOIA Officer's determination.
402.110 U.S. District Court action.
402.115 The FOIA Exemption 1: National defense and foreign policy.
402.120 The FOIA Exemption 2: Internal personnel rules and
practices.
402.130 The FOIA Exemption 4: Trade secrets and confidential
commercial or financial information.
402.135 The FOIA Exemption 5: Internal documents.
402.140 The FOIA Exemption 6: Clearly unwarranted invasion of
personal privacy.
402.145 The FOIA Exemption 7: Law enforcement.
402.150 The FOIA Exemptions 8 and 9: Records on financial
institutions; records on wells.
402.155 Records available for public inspection.
402.160 Where records are published.
402.165 Publications for sale through the Government Publishing
Office.
Authority: 42 U.S.C. 405, 902(a)(5), and 1306); 5 U.S.C. 552 and
552a; 18 U.S.C. 1905; 26 U.S.C. 6103; 31 U.S.C. 9701; E.O. 12600, 52
FR 23781, 3 CFR, 1987 Comp., p. 235.
Sec. 402.05 Scope and purpose of this part.
(a) The purpose of this part is to describe the Social Security
Administration's (SSA) policies and procedures for implementing the
requirements of the Freedom of Information Act (FOIA) 5 U.S.C. 552. The
FOIA mandates disclosure to the public of Federal agency records unless
specific exemptions apply. The FOIA also requires an agency to
proactively disclose records and make certain records available for
public inspection.
(b) The rules in this part describe how SSA makes records available
to the public, including:
(1) What constitutes a proper request for records;
(2) How to make a FOIA request;
(3) Who has the authority to release and withhold records;
(4) What fees may be charged to process a request for records;
(5) The timing of determinations regarding release;
(6) The exemptions that permit the withholding of records;
(7) Requesters' right to seek assistance from the FOIA Public
Liaison;
(8) Requesters' right to appeal the agency's FOIA determination;
(9) Requesters' right to seek assistance from the Office of
Government Information Services and then go to court if they still
disagree with our release determination; and
(10) The records available for public inspection.
(c) The rules in this part do not revoke, modify, or supersede
SSA's regulations relating to disclosure of information in part 401 or
403 of this chapter.
Sec. 402.10 Definitions.
As used in this part:
Agency means the Social Security Administration (SSA). Agency may
also refer to any executive department, military department, government
corporation, government-controlled corporation, or other establishment
in the executive branch of the Federal Government, or any independent
regulatory agency. A private organization is not an agency even if it
is performing work under contract with the Government or is receiving
Federal financial assistance.
Chief FOIA Officer means a senior official of SSA who has an
agency-wide responsibility for ensuring efficient and appropriate
compliance with the FOIA, monitoring implementation of the FOIA
throughout the agency, and making recommendations to the head of the
agency to improve the agency's implementation of the FOIA. The
Commissioner of SSA designated the General Counsel as the Chief FOIA
Officer for SSA. The Chief FOIA Officer or the Chief FOIA Officer's
designee is authorized to make final decisions in response to appeals
of the FOIA Officer's determinations.
Commercial interest includes interests relating to business, trade,
and profit, as well as non-profit corporations, individuals, unions,
and other associations. The interest of a representative of the news
media in using the information for news dissemination purposes will not
be considered a commercial interest.
Component means each separate office, division, commission,
service, center, or administration within SSA that may maintain agency
records subject to a request under the FOIA.
Duplication means the process of reproducing a copy of a record, or
of the information contained in it, to the extent necessary to respond
to a request. Copies include paper, electronic records, audiovisual
materials, and other formats of agency records.
Educational institution means a preschool, elementary or secondary
school, institution of undergraduate or graduate higher education, or
institution of professional or vocational education, which operates a
program of scholarly research. To qualify for this category, a
requester must show that FOIA request is authorized by, and is made
under the auspices of, a qualifying institution and that the records
are sought to further a scholarly research goal of the institution, and
not for a commercial use or purpose, or for individual use or benefit.
Exemption means one of the nine exemptions to the mandatory
disclosure of records permitted under section 552(b) of the FOIA.
Expedited processing means the process set forth in the FOIA that
allows requesters to request faster processing of their FOIA request,
if they meet specific criteria noted in Sec. 402.65.
Fee category means one of the three categories established by the
FOIA to determine whether a requester will be charged fees under FOIA
for search, review, and duplication. The categories are: commercial use
requests; non-commercial scientific or educational institutions and
news media requests; and all other requests.
Fee waiver means the waiver or reduction of fees if a requester is
able to demonstrate the requirements set forth in Sec. 402.85.
FOIA Officer means an SSA official whom the Commissioner of Social
Security delegated the authority to release or withhold records; to
assess, waive, or reduce fees in response to
[[Page 36991]]
FOIA requests; and to make all other determinations regarding the
processing of a FOIA request. In this capacity, the FOIA Officer is
authorized to request and receive responsive records that may be
maintained by other agency components. Except for records subject to
proactive disclosure pursuant to subsection (a)(2) of the FOIA, only
the FOIA Officer has the authority to release or withhold records or to
waive fees in response to a FOIA request.
FOIA Public Liaison means an agency official who reports to the
agency Chief FOIA Officer and serves as a supervisory official to whom
a requester can raise concerns about the service the requester received
concerning the processing of the FOIA request. This individual is
responsible for increasing transparency in the agency's FOIA business
process, helping requesters understand the status of requests, and
assisting in the resolution of disputes. The FOIA Public Liaison may be
contacted via email to ssa.gov">[email protected]ssa.gov.
FOIA request means a written request that meets the criteria in
Sec. 402.30.
Freedom of Information Act or FOIA means the law codified at 5
U.S.C. 552 that provides the public with the right to request agency
records from the Federal executive branch agencies.
Non-commercial scientific institution means an institution that
does not further the commercial, trade, or profit interests of any
person or entity and is operated for the purpose of conducting
scientific research whose results are not intended to promote any
particular product or industry.
Numident refers to the ``Numerical Identification System,'' the SSA
system that contains information available on an Application for a
Social Security Card (Form SS-5). The Numident record contains the name
of the applicant, place of birth, and other information.
OGC means the Office of the General Counsel.
Online FOIA portal means the electronic application that SSA uses
to process FOIA requests. The public may also submit requests directly
to SSA via the online FOIA portal.
Other requester means any individual or organization whose FOIA
request does not qualify as a commercial-use request, representative of
the news media request (including a request made by a freelance
journalist), or an educational or non-commercial scientific institution
request.
OPD means the Office of Privacy and Disclosure.
Production means the process of preparing the records for
duplication, including the time spent in preparing the records for
duplication (i.e., materials used, records/database retrieval, employee
and contractor time, as well as systems processing time).
Reading room means an electronic location(s) that SSA uses to post
records that are made available to the public without a specific
request. SSA makes reading room records electronically available to the
public through our website, ssa.gov, including at ssa.gov/foia.
Record(s) means any information maintained by an agency, regardless
of format, that is made or received in connection with official agency
business that is under the agency's control at the time of the FOIA
request. Record(s) includes any information maintained for an agency by
a third party.
(1) Record(s) does not include personal records of an employee, or
other information in formally organized and officially designated SSA
libraries and reading rooms, where such materials are available under
the rules of the particular library.
(2) Record(s) includes information maintained by the State
Disability Determination Services related to performing the disability
determination function and medical source information pertaining to
consultative examinations performed for the Social Security program
when obtained by, created on behalf of, or otherwise, in the control of
SSA.
Redact means delete or mark over.
Representative of the news media means any person or entity that
gathers information of potential interest to a segment of the public,
uses its editorial skills to turn raw materials into a distinct work,
and distributes that work to an audience. The term ``news'' means
information that is about current events or that would be of current
interest to the public. Examples of news media entities include
television or radio stations that broadcast news to the public at large
and publishers of periodicals, including print and online publications
that disseminate news and make their products available through a
variety of means to the general public. We do not consider FOIA
requests for records that support the news-dissemination function of
the requester to be a commercial use. We consider ``freelance''
journalists who demonstrate a solid basis for expecting publication
through a news media entity as working for that entity. A publishing
contract provides the clearest evidence that a journalist expects
publication; however, we also consider a requester's past publication
record. We decide whether to grant a requester media status on a case-
by-case basis, based on the requester's intended use of the requested
records.
Request means asking for records, whether or not the requester
refers specifically to the FOIA. Requests from Federal agencies,
subpoenas, and court orders for documents are not included within this
definition.
Review, unless otherwise specifically defined in this part, means
examining records responsive to a request to determine whether any
portions are exempt from disclosure. Review time includes processing a
record for disclosure (i.e., doing all that is necessary to prepare the
record for disclosure), including redacting the record and marking the
appropriate FOIA exemptions. It does not include the process of
resolving general legal or policy issues regarding exemptions.
Search means the process of identifying, locating, and retrieving
records responsive to a request, whether in hard copy or in electronic
form or format, or by manual or automated/electronic means.
Special services means performing additional services outside of
that required under the FOIA to respond to a request. Examples include
using an overnight mail service to send the agency's response to a FOIA
request.
SSA means the Social Security Administration.
SS-5 means an Application for a Social Security Card. It is used to
request an original, different, or replacement Social Security Card.
Submitter means any person or entity that provides trade secrets or
commercial or financial information to the agency, and includes
individuals, corporations, other organizational entities, and state and
foreign government.
Tolling means temporarily stopping the running of a time limit. We
may toll a FOIA request to seek clarification from the requester or to
address fee issues, as further described in Sec. 402.60(h).
Trade secrets and commercial or financial information means trade
secrets and commercial or financial information that is confidential,
and is obtained by the agency from a submitter, such that it may be
protected from disclosure under Exemption 4 of the FOIA, 5 U.S.C.
552(b)(4).
Sec. 402.15 SSA's FOIA policy.
(a) Presumption of openness. We will withhold information only if
we reasonably foresee that disclosure would harm an interest protected
by a FOIA exemption or if disclosure is prohibited by law.
(b) Authority to release and withhold records. As described in
Sec. 402.50, the
[[Page 36992]]
agency's FOIA Officer, or the FOIA Officer's designee, has the
authority to:
(1) Release or withhold records in response to initial requests;
(2) Grant or deny expedited processing; and
(3) Reduce or waive fees.
(c) Records publicly available. We make available for public
inspection in an electronic format records that are final and have been
requested and released three or more times and other specified records
described in Sec. 402.155. We do not make available for public
inspection records that are not static, such as the Open Access Death
Master File.
(d) Required record production. The FOIA does not require an agency
to give opinions, conduct research, answer questions, or create
records.
Sec. 402.20 Relationship between the FOIA and the Privacy Act of
1974.
(a) Coverage. The FOIA and the rules in this part apply to all SSA
records. The Privacy Act, 5 U.S.C. 552a, applies to records that are
about individuals, but only if the records are in a system of records.
(b) Requesting your own records. If you have filed a FOIA request
and are an individual requesting your own records that are maintained
in a system of records, or if you are a parent or legal guardian
authorized to act under Sec. 401.75 of this chapter who is seeking the
records about a minor or individual who has been declared incompetent,
we will handle your request under the Privacy Act. See Sec. 401.40 of
this chapter. If we handle your request under the Privacy Act, we will
provide you with written notification with further processing
instructions. If the Privacy Act prohibits disclosure, we will process
your request under the FOIA. You must verify your identity in
accordance with our regulations. See Sec. 401.45 of this chapter.
Sec. 402.25 Who can file a FOIA request?
Any member of the public may submit a FOIA request to SSA. Under
the FOIA, ``member of the public'' includes requests from individuals,
corporations, State and local agencies, as well as foreign entities.
Requests from Federal agencies and Federal or State courts are not
covered by the FOIA.
Sec. 402.30 Requirements of a FOIA request.
(a) To be considered a FOIA request under this part, the following
must occur:
(1) The request must be written (either by hand or electronically);
(2) The request must be submitted in accordance with Sec. 402.35;
(3) The requester must provide the following required contact
information: requester's name, U.S. or foreign postal address,
description of records sought, and fee willing to pay. While not
required, we encourage requesters to provide us with their email
address and phone number; and
(4) The request must clearly state and reasonably describe what SSA
records are being requested. Broad, sweeping requests and vague
requests are not reasonably described. The requester must describe the
records sought in sufficient detail to enable OPD to locate the records
with a reasonable amount of effort. When known, requests should
identify the records sought by providing the name/title of the record,
applicable date range, subject matter, offices or employees involved,
and record type. If the request is for electronic communications, such
as email records, the request should identify the names, position
titles, or other identifying information about the agency employees
involved, as well as the applicable timeframe. Absent sufficient
details, the agency may be unable to search for or locate the records
sought. The greater the date range, the longer it may take to process
the request and the greater amount of fees that may be charged.
(b) Requests that do not meet the required criteria above are not
considered proper FOIA requests.
Sec. 402.35 Where to submit a FOIA request.
(a) Submission of requests. Except as specified in paragraph (b) of
this section, requesters must submit FOIA requests in writing to OPD
through the following options:
(1) Online FOIA portal: link available from the agency's
www.ssa.gov/foia website.
(2) Email: ssa.gov">[email protected]ssa.gov.
(3) Mail: SSA Office of Privacy and Disclosure, ATTN: Freedom of
Information Officer, 6401 Security Boulevard, Baltimore, MD 21235.
(4) Fax: 410-966-0869.
(b) Requests for copies of Deceased Individual's Application for a
Social Security Card (SS-5) or Numident record. Requesters may use the
Form SSA-711, Request for a Deceased Individual's Social Security
Record, to request a copy of a deceased individual's original SS-5 or
Numident record. When the Form SSA-711 is used, it may be submitted to
the office listed on the form or as directed in paragraph (a) of this
section.
Sec. 402.40 Requests for deceased individual's records.
(a) The agency will disclose the records concerning a deceased
individual when we have acceptable proof of death unless Federal law or
regulations prohibits the disclosure.
(b) Proof of death includes:
(1) A copy of a public record of death of the number holder;
(2) A statement of death by the funeral home director;
(3) A statement of death by the attending physician or the
superintendent, physician, or intern of the institution where the
person died;
(4) A copy of the coroner's report of death or the verdict of the
coroner's jury;
(5) An obituary that we determine has sufficient identifying
information; or
(6) Other certified record of death that we determine within our
discretion is acceptable.
(c) If upon review of the provided proof of death, we cannot
determine that the individual is deceased or we have questions about
the authenticity of the proof, then the proof is not acceptable. When
we do not have acceptable proof of death, we will treat the request in
accordance with Sec. 402.20(b), requests for information about a
living person.
Sec. 402.45 Requests not processed under the FOIA.
(a) We will not process a request under the FOIA and the
regulations in this part to the extent it asks for records that are
currently publicly available, either from SSA or from another part of
the Federal Government. See Sec. 402.155.
(b) We will not process a request under the FOIA and the
regulations in this part if the records sought are distributed by SSA
as part of its regular program activity, for example, public
information leaflets distributed by SSA. See Sec. Sec. 402.155 through
402.165.
(c) We will not handle a process under the FOIA and the regulations
in this part if the records sought are earnings records covered by
Sec. 422.125 of this chapter.
(d) We will not process a request under the FOIA that does not meet
the requirements of a FOIA request as defined in Sec. 402.30. We will
send written correspondence to the requester:
(1) Providing instructions for how to submit a proper FOIA request;
or
(2) Asking for additional information to make the request a proper
FOIA request.
Sec. 402.50 FOIA Officer's authority.
(a) Release determination. Only the Deputy Executive Director for
OPD or their designee is authorized to make determinations about:
(1) Release or withholding of records;
(2) Expedited processing;
[[Page 36993]]
(3) Charging or waiver of fees; and
(4) Other matters relating to processing a request for records
under this part.
(b) Determination provided in writing. The FOIA Officer's
determination is provided in writing to the requester via emailed
communication or, in the absence of the requester's email address, via
U.S. postal mail. If the requester disagrees with the FOIA Officer's
determination in response to items identified in paragraph (a) of this
section, the requester may appeal the determination to the Executive
Director for OPD, as described in Sec. 402.105.
Sec. 402.55 Referrals and consultations.
(a) Referral of FOIA request to an outside agency. (1) If a request
is for records that were created by, or provided to us by, another
Federal agency that is subject to the FOIA, and if that agency asserts
control over the records, we may refer the records and the request to
that agency. We may likewise refer requests for classified records to
the agency that classified them. In these cases, we will ask the other
agency to process and respond to the request to the extent it concerns
records under that agency's regulation. We will notify the requester in
writing when we refer their request to another agency.
(2) If a request is for records that were created by, or provided
to us by, another agency that is not subject to the FOIA, we may
consult with that agency, as described in paragraph (c) of this
section.
(b) Referral of requester to another agency. If a request is for
records that are not SSA records for purposes of the FOIA, and we
believe the records may be maintained by another agency, we will advise
the requester to submit their request to that other agency. We will
provide the requester with the other agency's name in our response
letter. Our recommendation that the requester submit their request to
the other agency is not a guarantee the other agency will have or
disclose the records requested.
(c) Consultation with another agency or entity. If a request is for
records that contain information of interest to another agency or
entity, we may consult with the other agency or entity prior to issuing
our release determination to the requester.
Sec. 402.60 How does SSA process FOIA requests?
(a) Acknowledgement. (1) We make good faith efforts to acknowledge
all FOIA requests in writing within 10 business days after OPD's
receipt of the request. The acknowledgement email or letter restates
the FOIA request and provides the requester with the request's tracking
number.
(2) If we require clarification to process the FOIA request, we
will contact the requester either via email, U.S. postal mail, or phone
call. We attempt to contact requesters twice. If we do not receive a
response to our clarification attempts within 30 calendar days from the
date of our first contact to the requester, we will close the FOIA
request due to insufficient information.
(b) Perfected requests. FOIA requests are considered ``perfected,''
i.e., the 20-business day statutory time begins, when the request meets
the requirements of the proper FOIA request listed in Sec. 402.30.
There may be times that we require more information from the requester
after perfecting a request. The 20 business day period may be extended
in unusual circumstances by written notice to the requester. See
paragraph (e) of this section.
(c) Expedited processing. Unless granted expedited processing, we
process FOIA requests according to a first-in, first-out basis. See
Sec. 402.65 for information on expedited processing.
(d) Multi-tracking procedures. FOIA requests are categorized as
either simple or complex, depending on the nature of the request and
the estimated processing time:
(1) Simple. For most non-expedited requests, we make a
determination about release of the record(s) requested within 20
business days.
(2) Complex. We will place into a complex processing queue any
request that cannot be completed within 20 business days due to unusual
circumstances. We make good faith efforts to notify requesters in
writing if it is necessary for us to take additional time to process a
request and of the requester's right to seek dispute resolution
services with the Office of Government Information Services. See Sec.
402.100.
(e) Unusual circumstances. (1) Unusual circumstances exist when
there is a need to:
(i) Search for and collect records from SSA components or field
locations that are separate from OPD;
(ii) Search for, collect, and review a voluminous number of records
that are part of a single request; and/or
(iii) Consult with two or more SSA components or another agency
having substantial interest in the request before releasing the
records.
(2) Within the unusual circumstances letter to the requester, we
will provide an estimated date that we will contact the requester with
the applicable fee notice and/or further correspondence. We will also
advise the requester that they may modify or narrow the scope of their
request.
(f) Aggregating requests. We may aggregate requests in cases where
it reasonably appears that multiple requests, submitted either by a
requester or by a group of requesters acting in concert, constitute a
single request, involving clearly related matters, which would
otherwise involve unusual circumstances. In the event requests are
aggregated, they will be treated as one request for estimating response
time and calculating fees.
(g) Fee notice. FOIA requesters are issued a fee notice that
informs them of the estimated search and review time associated with
processing their FOIA request. For more information on fees, see
Sec. Sec. 402.70 through 402.80.
(h) Tolling. (1) We may stop or toll the 20 business days in two
circumstances:
(i) We may stop the clock once if we require additional information
regarding the specifics of the request; and
(ii) We may stop the clock as many times as needed regarding fee
assessments.
(2) The processing time will resume upon our receipt of the
requester's response. There may be instances when we require multiple
clarifications on a FOIA request. After the first request for
clarification, any additional clarifications are performed without
tolling the clock. Should the requester not respond to any
correspondence wherein we request clarification, or should the
correspondence be returned as undeliverable, we reserve the right to
administratively close the FOIA request if we do not receive a response
within 10 business days of the date of our correspondence requesting
clarification.
(i) Retrieving records. We are required to furnish copies of
records only when they are in our possession or we can retrieve them
from storage. We will make reasonable efforts to search for records
except when such efforts would significantly interfere with the
operation of our automated information system(s). The Federal
Government follows National Archives and Records Administration rules
on record retention. Records are retained or destroyed under the
guidelines of the Federal Records Act.
(j) Unproductive searches. We will search for records to satisfy a
request using methods that can be reasonably expected to produce the
requested records. Nevertheless, we may not be able to always find the
records requested using the information provided by the requester, or
they may not exist. If we advise that we have been
[[Page 36994]]
unable to find the records despite a diligent search, the requester may
appeal the no records determination to the Executive Director for OPD,
as described in Sec. 402.105.
(k) Furnishing records. We will furnish copies only of records in
whole or in-part, unless we reasonably foresee that disclosure would
harm an interest protected by a FOIA exemption or if disclosure is
prohibited by law. When information within a responsive record(s) is
exempt from disclosure, the information is redacted and the applicable
FOIA exemption(s) are noted within the redacted cell. We will make
reasonable efforts to provide the records in the form or format
requested if the record is readily reproducible in that form or format.
We may provide individual records as we process them on a rolling
basis, or we may release all responsive records once the request is
completed. See Sec. 402.95 for more information on SSA's release of
records.
(l) Burdensome requests. The FOIA requires an agency to provide the
record in any form or format requested by the person if the record is
readily reproducible by the agency in that form or format. We will not
search or produce records in response to a FOIA request that we
determine would be unduly burdensome to process. FOIA requests are
determined to be unreasonably burdensome when processing the FOIA
request would significantly interfere with the ongoing operation of the
agency's programs.
Sec. 402.65 Expedited processing.
(a) Expedited processing must be requested at the same time as the
FOIA request. We provide expedited processing when the requester can
demonstrate a ``compelling need'' for the requested information, such
as:
(1) When there is an imminent threat to the life or safety of a
person;
(2) When the request is from the media, or others primarily engaged
in disseminating information, and shows an immediate urgency to inform
the public about actual or alleged government activities; or
(3) When the requester can show, in detail and to our satisfaction,
that a prompt response is needed because the requester may be denied a
legal right, benefit, or remedy without the requested information, and
that it cannot be obtained elsewhere in a reasonable amount of time.
(b) Only the FOIA Officer may make the decision to grant or deny
expedited processing. Requests that do not meet the ``compelling need''
criteria, will be processed normally. If we do not grant the request
for expedited processing, the requester may appeal the denial to the
Executive Director for OPD. In the appeal letter, the requester should
explain why they believe their request demonstrates a ``compelling
need,'' such as describing how the request meets the criteria in
paragraphs (a)(1) through (3) of this section. The process described in
Sec. 402.105 will also apply to these appeals.
Sec. 402.70 Fees associated with processing FOIA requests.
(a) Charging authorities--(1) Section 1106(c). Section 1106(c) of
the Social Security Act (42 U.S.C. 1306(c)) allows the agency to charge
for FOIA requests that are not directly related to SSA's administration
of the Social Security Act. See Sec. 402.80 for information on the
agency's authorization under section 1106(c) to charge requesters.
Requesters may request a fee waiver, as described in Sec. 402.85.
(2) FOIA fee categories. The FOIA establishes three fee categories
of requesters, i.e., commercial use, non-commercial scientific or
educational institutions and representatives of the news media; and
other requesters. The category of the requester determines the fees
that may be charged; see Sec. 402.75 for the FOIA fee schedule.
Requesters may request a fee waiver, as described in Sec. 402.85.
(b) Hourly rate when charging under section 1106(c) and the FOIA
fee categories. (1) When we search for and review records, we charge an
hourly rate, based in 15-minute increments, depending on the grade(s)
of the employee(s) and/or contractors performing the search and review.
The hourly rate is the same when charging under the FOIA fee provisions
or section 1106(c) of the Social Security Act. SSA uses the current
General Schedule (GS) salary table for the locality pay area of
Washington-Baltimore-Arlington, DC-MD-VA-WV-PA. We use the following
criteria to compute our hourly rates for search or review:
(i) When performed by employees at grade GS-1 through GS-8, SSA
will charge an hourly rate based on the salary of a GS-5, step 7,
employee;
(ii) When performed by a GS-9 through GS-14, SSA will charge an
hourly rate based on the salary of a GS-12, step 4, employee; and
(iii) When performed by a GS-15 or above, SSA will charge an hourly
rate based on the salary of a GS-15, step 7, employee.
(2) When work is performed by a contractor, we will charge an
hourly rate based on the GS equivalent of the contractor's hourly pay
rate. We compute the hourly rate by taking the current hourly rate for
the specified grade and adding 16 percent of that rate to cover
benefits and rounding to the nearest whole dollar. These rates are
adjusted as Federal salaries change. Federal salary rates are available
from the Office of Personnel Management. When a search and review
involves employees at more than one of these GS levels, we will charge
the rate appropriate for each. We may charge a fee for search time even
if we are unable to locate any responsive records or the records are
exempt from disclosure.
Sec. 402.75 FOIA fee schedule.
(a) Fee schedule category. Requesters whom SSA charges under the
FOIA fee schedule are subject to the following fees dependent upon
their fee category:
(1) Commercial. Commercial use requesters are charged for search,
review, and duplication.
(2) Non-commercial educational or scientific institutions and
representative of the news media. Requesters that fit this category are
charged for the duplication of documents. We will not charge requesters
the copying costs for the first 100 pages of duplication.
(3) Other. If the FOIA request does not fall within a category
described in paragraph (a)(1) or (2) of this section, we will charge
for search and duplication; however, we will not charge for the first
two hours of search time or for the duplication costs of the first 100
pages.
(b) Certification. If a requester asks for certification of the
record(s) responsive to their FOIA request and OPD agrees to provide
it, we will notify the requester of the appropriate certification fee
via written correspondence.
(c) Record(s) production and duplication--(1) Electronic records.
We will charge the actual costs for producing and duplicating the
record and the time spent by the employees or contractors in
production, duplication, or otherwise processing the FOIA request, at
the rates given in Sec. 402.70(c).
(2) Photocopying standard size pages. For noncommercial requesters,
we will charge $0.10 per page after the first 100 pages, which are
free. The FOIA Officer may charge lower fees for particular documents
where:
(i) The document has already been printed in large numbers;
(ii) The program office determines that using existing stock to
answer this request, and any other anticipated FOIA requests, will not
interfere with program requirements; and
(iii) The FOIA Officer determines that the lower fee is adequate to
recover the prorated share of the original printing costs.
[[Page 36995]]
(3) Photocopying odd-size documents. For photocopying documents,
such as punch cards or blueprints, or duplicating other records, such
as tapes, we will charge the actual costs of operating the machine,
plus the actual cost of the materials used, plus charges for the time
spent by the operator, at the rates given in Sec. 402.70(c).
(d) Cost of service less than cost of issuing a bill. We will not
charge a fee when the cost of the service is less than the cost of
sending the requester a bill. However, where an individual,
organization, or governmental unit makes multiple separate requests, we
will total the costs incurred and bill the requester for the services
rendered.
(e) Fee waiver. We may waive or reduce the fee if we find that
waiver is in the public interest. See Sec. 402.85 for fee waiver
information.
Sec. 402.80 Charging under section 1106(c) of the Social Security
Act.
Section 1106(c) of the Social Security Act permits the agency to
charge the full cost to process requests for information for purposes
not directly related to the administration of program(s) under the
Social Security Act. This may be done notwithstanding the fee
provisions in FOIA, the Privacy Act, or any other provision of law. In
responding to FOIA requests for non-program purposes, we will charge
the full cost (both direct and indirect costs) of our services,
regardless of the requester's fee categorization, unless the cost of
the service is less than the cost of issuing a bill as stated in
paragraph (b) of this section.
(a) Full costs. The agency may charge full costs for processing
records or information requests, including but not limited to:
(1) Search. We may charge for search time even if we are unable to
locate any responsive records or the records are exempt from
disclosure. We will notify the requester in writing if the records
estimated as responsive are determined unreasonably burdensome for the
agency to process and/or the search would cause significant
interference with the operation of SSA's automated information systems.
(2) Review. Review includes the reviews performed at any level
(staff through executive), including but not limited to review by
multiple people and offices.
(3) Production and duplication of record(s). We may charge the full
cost of the systems' processing (e.g., computer search time, computer
processing database retrieval), materials used to produce and duplicate
the requested record(s), and time spent by agency employee(s) and/or
contractor(s) in production, duplication, or otherwise processing the
FOIA request.
(4) Certification. We will charge the full costs for certification.
(5) Employee's time. The full cost of an employee's time includes
fringe benefits and overhead costs, such as rent and utilities.
(6) Forwarding/delivering materials. If special arrangements for
forwarding material are requested, we will charge the requester the
full cost of this service (e.g., if express mail or a commercial
delivery service is requested). If no special forwarding arrangements
are requested, we will charge the requester the full cost of the
service, including the U.S. Postal Service cost.
(7) Performing other special services. If we agree to provide any
special services requested, we will charge the full cost of the time of
the employee(s) or contractor(s) who perform the service, plus the full
cost of any systems processing time and materials that the employee or
contractor uses.
(b) Cost of service less than cost of issuing a bill. We will not
charge a fee when the cost of the service is less than the cost of
sending the requester a bill. However, where an individual,
organization, or governmental unit makes multiple separate requests, we
will total the costs incurred and bill the requester for the services
rendered.
(c) Standard administrative fees for non-program information. The
information in this part does not revoke, modify, or supersede the
schedule of standard administrative fees the agency charges for
specified non-program information requests.
(d) Non-program purpose. Non-program purposes constitute any
purpose that is not program related.
(1) We consider a request to be program related if:
(i) The information must be disclosed under the Social Security Act
(Act); or
(ii) The Information will be used for a purpose which is directly
related to the administration of a program under the Act for which SSA
has responsibility. In deciding whether this paragraph (d)(1)(ii)
applies, the major criteria SSA considers is whether the information
is:
(A) Needed to pursue a benefit under a program that SSA administers
under the Act.
(B) Needed solely to verify the accuracy of information obtained in
connection with a program that SSA administers under the Act.
(C) Needed in connection with an activity under SSA's purview which
is authorized under the Act.
(D) Needed by an employer to carry out taxpaying responsibilities
under the Federal Insurance Contributions Act or section 218 of the
Act.
(2) We will consider each request on a case-by-case basis when the
criteria in this paragraph (d) are not met but the requester claims a
request is for a program-related purpose for another reason. We will
not conclude a request is program-related solely because the records
sought are about programs administered by SSA or are claimed to be of
public interest.
(e) Disagreement with program or non-program determination. Only
the FOIA Officer has the authority to make the program/non-program
decision. If a requester disagrees with the FOIA Officer's non-program
determination, they may appeal the decision to the Executive Director
for OPD. In the appeal letter, the requester should explain why they
believe the request meets the requirements in paragraph (c) of this
section. The process described in Sec. 402.105 will also apply to
these appeals.
Sec. 402.85 Waiver of fees in the public interest.
A requester may request waiver or reduction of fees, whether
charged under Sec. 402.75 or Sec. 402.80, if the release of the
requested records is in the public interest. We will waive or reduce
the fees we would otherwise charge if disclosure of the requested
information:
(a) Is in the public interest because it is likely to contribute
significantly to public understanding of the operations or activities
of the government; and
(b) Is not primarily in the commercial interest of the requester.
(1) Procedure for requesting a waiver or reduction. A requester
must make the request for a fee waiver or reduction at the same time
they make their request for records. The requester should explain with
reasonable specificity why they believe a waiver or reduction is proper
under the analysis in paragraphs (b)(2) and (3) of this section. Only
the FOIA Officer may make the decision whether to waive, or reduce, the
fees. If we do not completely grant the request for a waiver or
reduction, the requester may appeal the denial to the Executive
Director for OPD. In the appeal letter, the requester should explain
why they believe the request meets the requirements in paragraphs
(b)(2) and (3) of this section. The process prescribed in Sec. 402.105
will also apply to these appeals.
(2) Public interest. We consider the factors below when analyzing
whether disclosure is in the public interest:
(i) How the records pertain to the Federal Government's operations
or activities;
[[Page 36996]]
(ii) Whether disclosure would reveal any meaningful information
about Government operations or activities not already known to the
public; and
(iii) Whether the contribution to public understanding would be
significant.
(3) Not primarily in requester's commercial interest. If the
disclosure is determined to be in the public interest as described in
paragraph (b)(2) of this section, we will then determine whether it
also furthers the requester's commercial interest and, if so, whether
this effect outweighs the advancement of that public interest. We
consider the following factors when analyzing whether disclosure is not
primarily in the requester's commercial interest:
(i) Would the disclosure further a commercial interest of the
requester, or of someone on whose behalf the requester is acting?
(ii) If disclosure would further a commercial interest of the
requester, would that effect outweigh the advancement of the public
interest defined in paragraph (b)(2) of this section? Which effect is
primary?
(4) Burden on SSA to produce the record(s). If the disclosure meets
the requirements in paragraphs (b)(2) and (3) of this section, we
reserve the right to charge a fee if special services are needed to
provide the records.
(5) Deciding between waiver and reduction. If the disclosure meets
the requirements in paragraphs (b)(2) and (3) of this section, we will
normally waive fees. However, in some cases we may decide only to
reduce the fees. For example, we may do this when disclosure of some
but not all of the requested records meet the fee waiver criteria.
Sec. 402.90 Notification of fees and prepayment requirements.
Requesters must agree to pay the fee, whether charged under Sec.
402.75 or Sec. 402.80, before we will begin the search for record(s).
(a) Cost estimate. OPD will issue a fee notice to the requester for
the processing of their request for records that includes an estimated
fee based on the time we estimate it will take to process the record(s)
requested. We issue fee notices via email or, when the requester does
not provide an email address, via U.S. postal mail.
(b) Advanced payment information required. The requester must agree
to pay the estimated fee provided within the fee notice and provide the
agency with payment information within 30 calendar days from the date
of our fee notice. Payment information is required before OPD will
begin the search for the requested record(s). Unless otherwise
specified in the schedule of standard administrative fees the agency
charges for specified non-program information requests, OPD will
process payment when the request is closed, i.e., when the FOIA Officer
issues a decision on records release. If the payment information
provided by the requester expires during the course of OPD's processing
of the FOIA request, the requester must provide updated payment
information. If updated payment information is not provided within 30
calendar days of our written request for the payment information, we
reserve the right to administratively close the request.
(c) Changes in estimated fee. (1) If the time spent to search for
records is more or less than the time estimated in the fee notice, OPD
will issue the requester a revised fee notice after the responsive
component(s) performs the records search and retrieval.
(2) If the record(s) provided to OPD for review are more or less
than those from which OPD estimated search and review time, OPD will
issue the requester a revised fee notice after the responsive
component(s) perform the records search and retrieval.
(3) OPD will return the payment information to the requester when
OPD issues the revised fee notice.
(4) The requester must agree to pay the revised fee before we will
continue processing the request. If the requester disagrees with the
revised fee, the requester may appeal to the Executive Director for
OPD. Appeals will be processed as described in Sec. 402.105.
(d) Prompt payment. We will administratively close the FOIA request
if we do not receive a response or appeal within 30 calendar days from
the date of the fee notice. ``Response'' includes:
(1) Requesting to narrow the scope of the request; or
(2) Providing payment in response to the fee notice. Appeals will
be processed as described in Sec. 402.105.
(e) Methods of payment. We accept payment by check or money order
made payable to the Social Security Administration (SSA), as well as by
credit card (MasterCard, Visa, Discover, American Express, or Diner's
Club).
Sec. 402.95 Release of records.
(a) Records previously released. If we have released a record, or a
part of a record, to others in the past, we will ordinarily release it
to the requester, as well. However, we will not release it to a
requester if a statute forbids this disclosure; an exemption applies
that was not previously applicable; or if the previous release was
unauthorized.
(b) Withholding records. Section 552(b) of the FOIA explains the
nine exemptions under which we may withhold records requested under the
FOIA. Within Sec. Sec. 402.115 through 402.150, we describe the FOIA
exemptions and explain how we apply them to disclosure determinations.
In some cases, more than one exemption may apply to the same document.
Section 552(b) of the FOIA, while providing nine exemptions from
mandatory disclosure, does not itself provide any assurance of
confidentiality by the agency.
(c) Reading room. If the record(s) requested are already publicly
available, either in our electronic reading room or elsewhere online,
such as at www.ssa.gov, we will direct the requester to the publicly
available record(s).
(d) Poor copy. If we cannot make a legible copy of a record to be
released, we do not attempt to reconstruct it. Instead, we furnish the
best copy possible and note its poor quality in our reply.
Sec. 402.100 FOIA Public Liaison and the Office of Government
Information Services.
We notify requesters of their right to seek dispute resolution from
the FOIA Public Liaison or the Office of Government Information
Services (OGIS) within our fee notices, responses to determinations
identified in Sec. 402.50(a), and responses to appeals.
(a) FOIA Public Liaison. If requesters have questions about the
response to their request or wish to seek dispute resolutions services
within SSA, the requester may contact the FOIA Public Liaison via email
to ssa.gov">[email protected]ssa.gov.
(b) OGIS. OGIS is an entity outside of SSA that offers mediation
services to resolve disputes between FOIA requesters and Federal
agencies as a non-exclusive alternative to litigation. OGIS' contact
information will be provided in any decision letter issued by the FOIA
Officer and Executive Director for OPD.
Sec. 402.105 Appeals of the FOIA Officer's determination.
(a) Appeal requirements. If a requester disagrees with the FOIA
Officer's determination in response to items specified in Sec.
402.50(a), the requester may appeal the decision. The appeal must meet
the following requirements:
(1) Be submitted in writing via the avenues identified in Sec.
402.35(a);
(2) Be received within 90 days from the date of the determination
the requester is appealing; and
[[Page 36997]]
(3) Explain what the requester is appealing and include additional
information to support the appeal.
(b) Acknowledgement. We make a good faith effort to acknowledge all
appeals in writing within 10 business days after OPD's receipt of the
appeal. The acknowledgement is provided via email or, when the
requester does not provide an email address, via U.S. postal mail. The
acknowledgement email or letter restates the FOIA appeal and provides
the requester with the appeal's tracking number.
(c) Processing timeframe. FOIA appeals are categorized as either
simple or complex, based on the designation of the initial request.
(1) Simple. Generally, we make a determination about release of the
requested record(s) within 20 business days.
(2) Complex. Appeals of complex requests cannot be completed within
20 business days due to unusual circumstances. During OPD's processing
of the appeal, OPD will need to consult with appropriate SSA
component(s), including legal counsel; therefore, we generally require
more than 20 business days to issue a final decision on the appeal.
(d) Final decision. The Chief FOIA Officer delegated to the
Executive Director for OPD the authority to make decisions on appeals
of the FOIA Officer's determinations.
(1) The final decision is provided in writing to the requester via
email or, in the absence of the requester's email address, via U.S.
postal mail.
(2) The final decision letter will explain the basis of the
decision (for example, the reasons why an exemption applies).
(e) Disagreement with final decision. If a requester disagrees with
the final decision issued by the Executive Director for OPD, they may
seek assistance from OGIS, as described in Sec. 402.100. Requesters
may also ask a U.S. District Court to review our final decision. See 5
U.S.C. 552(a)(4)(B).
Sec. 402.110 U.S. District Court action.
If the Executive Director for OPD or the Executive Director for
OPD's designee, upon review, affirms the denial of the FOIA Officer's
determination of items specified in Sec. 402.50(a), requesters may ask
a U.S. District Court to review that denial. See 5 U.S.C. 552(a)(4)(B).
Sec. 402.115 The FOIA Exemption 1: National defense and foreign
policy.
We are not required to release records that are specifically
authorized under criteria established by an Executive order to be kept
secret in the interest of national defense or foreign policy and are in
fact properly classified pursuant to such Executive order.
Sec. 402.120 The FOIA Exemption 2: Internal personnel rules and
practices.
We are not required to release records that are related solely to
the internal personnel rules and practices of an agency. For example,
we may withhold personnel rules and practices dealing with employee
relations or human resources.
Sec. 402.125 The FOIA Exemption 3: Records exempted by other
statutes.
(a) Required record release. We are not required to release records
if another statute specifically allows or requires us to withhold them.
We may use another statute to justify withholding only if it prohibits
disclosure or if it sets forth criteria to guide our decision on
releasing or identifies particular types of material to be withheld.
(b) Examples. (1) We often use this exemption to withhold
information regarding a worker's earnings which is tax return
information under section 6103 of the Internal Revenue Code.
(2) We also use this exemption to withhold death information about
decedents:
(i) When the date of death is within three calendar years from the
current date, the requested information about the decedent is protected
under section 203 of the Bipartisan Budget Act of 2013 (Pub. L. 113-
67).
(ii) When the agency's source of death is the state, the requested
information is protected under section 205(r) of the Social Security
Act.
Sec. 402.130 The FOIA Exemption 4: Trade secrets and confidential
commercial or financial information.
SSA will allow submitters to designate information as trade secrets
and confidential commercial or financial information at the time of
submission or within a reasonable time thereafter. Submitters must use
good faith efforts to designate, by appropriate markings, any portion
of its submission that it considers to be protected from disclosure
under the FOIA exemptions. These designations expire ten years after
the due date of the submission unless the submitter requests a longer
designation period.
(a) Steps of submitters notice--(1) The submitter's notice. When
trade secrets or confidential commercial or financial information is
requested under the FOIA, SSA will provide written submitter's notice
if we have substantial reason to believe that information in the
records could reasonably be considered exempt under the FOIA Exemption
4. The submitter's notice will describe and include a copy of the trade
secret or commercial or financial information requested. In cases
involving many submitters, SSA may publish a submitter's notice to
inform the submitters of the proposed disclosure instead of sending
individual notifications. The submitter's notice requirements of this
section do not apply if:
(i) SSA determines the information is fully exempt under the FOIA,
and therefore will not be disclosed;
(ii) The information has been previously published or made
generally available; or
(iii) Disclosure of the information is required by statute other
than the FOIA.
(2) Submitter's opportunity to object to disclosure. (i) The
submitter must respond to the notice within five business days of SSA
issuing the submitter's notice or the information may be released in
accordance with these regulations and the FOIA. A submitter who fails
to respond within five business days will be considered to have no
objection to the disclosure of the information. SSA is not required to
consider any information received after the date of any disclosure
decision. Any information provided by a submitter under this subpart
may itself be subject to disclosure under the FOIA.
(ii) If a submitter objects to disclosure, the submitter should
provide SSA with a detailed written statement that specifies all
grounds for withholding the particular information under any exemption
of the FOIA. In order to rely on Exemption 4 as basis for non-
disclosure, the submitter must explain why the information constitutes
a trade secret or commercial or financial information that is
confidential.
(iii) SSA will consider a submitter's timely made objections and
specific grounds for nondisclosure in deciding whether to disclose the
requested information.
(3) Notice of intent to disclose. Whenever SSA decides to disclose
information over the objection of a submitter, SSA provides the
following to the submitter:
(i) A Release Over Objection letter explaining the reasons why each
of the submitter's disclosure objections did not meet the requirements
for withholding under the FOIA.
(ii) A copy of the information as SSA intends to release it.
(iii) A statement of our intent to disclose the information five
business days from the date on the Release Over Objection letter unless
the submitter
[[Page 36998]]
files an action in a U.S. District Court to prevent the release.
(b) Notice of FOIA lawsuit. When a submitter's notice is issued for
a request that is the subject of a lawsuit, SSA notifies the submitter
of the lawsuit within the notice.
(c) Requester notification. To the extent SSA expects substantial
delays in the processing of FOIA requests due to the agency's
communications with the submitter, we will notify the requester in
writing via email, or when the requester's email is not provided, via
U.S. postal mail.
Sec. 402.135 The FOIA Exemption 5: Internal documents.
This exemption covers inter-agency or intra-agency government
documents that fall within an evidentiary privilege recognized in civil
discovery. Such internal government communications include an agency's
communications with an outside consultant or other outside person, with
a court, or with Congress, when those communications are for a purpose
similar to the purpose of privileged intra-agency communications. Some
of the most-commonly applicable privileges are described in the
following paragraphs:
(a) Deliberative process privilege. This privilege protects the
decision-making processes of government agencies. Information is
protected under this privilege if it is predecisional and deliberative.
The purpose of the privilege is to prevent injury to the quality of the
agency decision-making process by encouraging open and frank internal
discussions, by avoiding premature disclosure of decisions not yet
adopted, and by avoiding the public confusion that might result from
disclosing reasons that were not in fact the ultimate grounds for an
agency's decision. Purely factual material in a deliberative document
is within this privilege only if it is inextricably intertwined with
the deliberative portions so that it cannot reasonably be segregated,
if it would reveal the nature of the deliberative portions, or if its
disclosure would in some other way make possible an intrusion into the
decision-making process. We will release purely factual material in a
deliberative document unless that material is otherwise exempt. The
privilege continues to protect predecisional documents even after a
decision is made; however, we will release predecisional deliberative
communications that were created 25 years or more before the date on
which the records are requested.
(b) Attorney work product privilege. This privilege protects
records prepared by or for an attorney in anticipation of or for
litigation. It includes documents prepared for purposes of
administrative and court proceedings. This privilege extends to
information directly prepared by an attorney, as well as materials
prepared by non-attorneys working for an attorney.
(c) Attorney-client communication privilege. This privilege
protects confidential communications between an attorney and the
attorney's client where legal advice is sought or provided.
Sec. 402.140 The FOIA Exemption 6: Clearly unwarranted invasion of
personal privacy.
We may withhold records about individuals if disclosure would
constitute a clearly unwarranted invasion of their personal privacy.
(a) Balancing test. When we decide whether to release records that
contain personal or private information about someone else, we weigh
the foreseeable harm of invading a person's privacy against the public
interest in disclosure. When we determine whether disclosure would be
in the public interest, we will consider whether disclosure of the
requested information would shed light on how a Government agency
performs its statutory duties.
(b) Agency employees. To protect the safety of agency employees, we
will not disclose information when the information sought is contact
information and/or duty stations of one or more Federal employees if
the disclosure would place employee(s) at risk of injury or other harm.
(c) Examples. We generally withhold the personally identifiable
information of individuals if we do not have the consent (consistent
with Sec. 401.100 of this chapter) of the number holder, including but
not limited to the number holder's home address, age, Social Security
number, claims file, and other personal information. If the information
requested concerns agency employees, we will determine disclosure on a
case-by-case basis. For example, our redaction of management officials'
information may be treated differently depending on how the balancing
test applies in a given circumstance.
Sec. 402.145 The FOIA Exemption 7: Law enforcement.
We are not required to disclose information or records that the
government has compiled for law enforcement purposes. The records may
apply to actual or potential violations of either criminal or civil
laws or regulations. We can withhold these records only to the extent
that releasing them would cause harm in at least one of the following
situations:
(a) Enforcement proceedings. Pursuant to the FOIA Exemption 7(A) (5
U.S.C. 552(b)(7)(a)), we may withhold information whose release could
reasonably be expected to interfere with prospective or ongoing law
enforcement proceedings. Investigations of fraud and mismanagement,
employee misconduct, and civil rights violations may fall into this
category. In certain cases--such as when a fraud investigation is
likely--we may refuse to confirm or deny the existence of records that
relate to the violations in order not to disclose that an investigation
is in progress, or may be conducted.
(b) Fair trial or impartial adjudication. Under the FOIA Exemption
7(B) (5 U.S.C. 552(b)(7)(b)), we may withhold records whose release
would deprive a person of a fair trial or an impartial adjudication
because of prejudicial publicity.
(c) Personal privacy. Under the FOIA Exemption 7(C) (5 U.S.C.
552(b)(7)(c)), we may withhold the personally identifiable information
of individuals when the disclosure could reasonably be expected to
constitute an unwarranted invasion of personal privacy. When a name
surfaces in an investigation, that person is likely to be vulnerable to
innuendo, rumor, harassment, and retaliation.
(d) Confidential sources and information. Pursuant to the FOIA
Exemption 7(D) (5 U.S.C. 552(b)(7)(d)), we may withhold the identity of
confidential sources, as well as the records obtained from the
confidential sources in criminal investigations or by an agency
conducting a lawful national security investigation. A confidential
source may be an individual; a State, local, or foreign government
agency; or any private organization. The exemption applies whether the
source provides information under an express promise of confidentiality
or under circumstances from which such an assurance could be reasonably
inferred; however, inferred confidentiality is determined in a case-by-
case analysis. Also protected from mandatory disclosure is any
information which, if disclosed, could reasonably be expected to
jeopardize the system of confidentiality that assures a flow of
information from sources to investigatory agencies.
(e) Techniques and procedures. Under the FOIA Exemption 7(E) (5
U.S.C. 552(b)(7)(e)), we may withhold records reflecting special
techniques or procedures of investigation or prosecution, not otherwise
generally known to the public. In some cases, it
[[Page 36999]]
is not possible to describe even in general terms those techniques
without disclosing the very material to be withheld. We may also
withhold records whose release would disclose guidelines for law
enforcement investigations or prosecutions if this disclosure could
reasonably be expected to create a risk that someone could circumvent
requirements of law or of regulation.
(f) Life and physical safety. Under the FOIA Exemption 7(F) (5
U.S.C. 552(b)(7)(f)), we may withhold records whose disclosure could
reasonably be expected to endanger the life or physical safety of any
individual. This protection extends to threats and harassment, as well
as to physical violence.
Sec. 402.150 The FOIA Exemptions 8 and 9: Records on financial
institutions; records on wells.
Exemption 8 permits us to withhold records about regulation or
supervision of financial institutions. Exemption 9 permits the
withholding of geological and geophysical information and data,
including maps, concerning wells.
Sec. 402.155 Records available for public inspection.
(a) Under the FOIA, SSA is required to make available for public
inspection in an electronic format:
(1) Final opinions made in the adjudication of cases;
(2) An agency's statements and interpretations of policy that have
been adopted but are not published in the Federal Register;
(3) Administrative staff manuals and instructions that affect the
public; and
(4) Copies of records, regardless of form or format, that an agency
determines will likely become the subject of subsequent requests, as
well as records that have been requested and released three or more
times, unless said materials are published and copies are offered to
sale.
(b) SSA will not use or cite instructional manuals issued to our
employees, general statements of policy, and other materials which are
used in processing claims as a precedent for an action against a person
unless we have indexed the record and published it or made it
available, or unless the person has timely notice of the record.
(c) Records that the FOIA requires SSA to make available for public
inspection in an electronic format may be accessed through www.ssa.gov
free of charge. Such records include:
(1) Compilation of Social Security Laws and Regulations;
(2) SSA regulations under the retirement, survivors, disability,
and supplemental security income programs, i.e., 20 CFR parts 401, 402,
404, 416, and 422;
(3) Social Security Handbook;
(4) Social Security Rulings and Acquiescence Rulings;
(5) SSA's Public Programs Operations Manual System;
(6) SSA's Organizational Structure;
(7) State and Local Coverage Handbook for State Social Security
Administrators; and
(8) Hearings, Appeals, and Litigation Law Manual.
Sec. 402.160 Where records are published.
(a) Methods of publication. Materials we are required to publish
pursuant to the provisions of 5 U.S.C. 552(a)(1) and (a)(2), we publish
in one of the following ways:
(1) By publication in the Federal Register of Social Security
Administration regulations, and by their subsequent inclusion in the
Code of Federal Regulations;
(2) By publication in the Federal Register of appropriate general
notices;
(3) By other forms of publication, when incorporated by reference
in the Federal Register with the approval of the Director of the
Federal Register; and
(4) By publication in the ``Social Security Rulings'' of indexes of
precedential social security orders and opinions issued in the
adjudication of claims, statements of policy and interpretations that
have been adopted but have not been published in the Federal Register.
(b) Publication of rulings. Although not required pursuant to 5
U.S.C. 552(a)(1) and (a)(2), we publish the following rulings in the
Federal Register and by other forms of publication:
(1) We publish Social Security Rulings in the Federal Register
under the authority of the Commissioner of Social Security. They are
binding on all components of SSA. These rulings represent precedent
final opinions and orders and statements of policy and interpretations
that we have adopted.
(2) We publish Social Security Acquiescence Rulings in the Federal
Register under the authority of the Commissioner of Social Security.
They are binding on all components of SSA, except with respect to
claims subject to the relitigation procedures established in 20 CFR
404.985(c) and 416.1485(c). For a description of Social Security
Acquiescence Rulings, see 20 CFR 404.985(b) and 416.1485(b).
Sec. 402.165 Publications for sale through the Government Publishing
Office.
The public may purchase publications containing information
pertaining to the program, organization, functions, and procedures of
SSA from the electronic U.S. Government Bookstore maintained by the
Government Publishing Office. The publications for sale include but are
not limited to:
(a) Title 20, parts 400 through 499, of the Code of Federal
Regulations;
(b) Federal Register issues; and
(c) Compilation of the Social Security Laws.
[FR Doc. 2023-09824 Filed 6-5-23; 8:45 am]
BILLING CODE 4191-02-P