TN 4 (07-11)

Citations:

5 USC 552 (Freedom of Information Act);

5 USC 552a (Privacy Act)

; 26 USC 6103 (Internal Revenue Code)

; and 42 USC 1306 (Social Security Act)

20 CFR, Part 401 (Privacy and Disclosure of Official Records and Information)

20 CFR, Part 402 (Availability of Information and Records to the Public)

A. Freedom of Information Act requirements

The Freedom of Information Act (FOIA) requires Federal agencies of the executive branch of the government to make records available to the public, with limited exceptions. We describe the FOIA requirements and exemptions in GN 03301.000.

B. Authority to make decisions on FOIA requests

Only SSA's Freedom of Information (FOI) Officer, who is also the Deputy Executive Director for the Office of Privacy and Disclosure (OPD) in the Office of the General Counsel, may make initial determinations to disclose or withhold (in full or in part) SSA records under the FOIA, except as otherwise provided by regulation, 20 CFR, Part 402 .

1. Disclosures authorized by regulations

The following disclosures are authorized by regulations and do not require a determination by the FOI Officer. Any authorized employee may make these disclosures:

• All disclosures authorized by 20 CFR Parts 401 and 402 ;

• All disclosures required by Federal law (other than the FOIA);

• All disclosures from Privacy Act systems of records for which the subject of the record has consented or for which routine uses have been published;

• All disclosures authorized by regulations of other Federal agencies from records subject to those regulations.

  For example, disclosures pursuant to Office of Personnel Management (OPM) regulations on disclosure of Federal government employee information at 5 CFR § 293.311 , which lists information that will be disclosed about Federal employees including name, present and past position titles, position descriptions and duty stations, past and present grade, and salary including awards;

• All material described in the indexes of administrative staff manuals and instructions, unless otherwise noted therein;

• All disclosures required by contracts or other legally binding agreements with SSA;

• Disclosures permissible to the Federal government; and

• Disclosures initiated by SSA.

2. Decision of exemptions

1. We may withhold records from the public only if a FOIA exemption permits the withholding. For a description of the nine FOIA exemptions, see GN 03301.015B.5.

2. The FOI Officer makes all decisions involving FOIA exemptions. For more information about authorized disclosures, see GN 03350.005A.2 in this section.

3. Decisions to withhold agency records from the public must cite one or more FOIA exemptions.

3. Effect of prior disclosure

We may not be able to assert an exemption to withhold records from the public if we previously disclosed the records to a member of the public. If we previously disclosed material that we now believe should be withheld, advise the FOI Officer of the circumstances of the prior disclosure. An unauthorized disclosure or leak generally does not constitute waiver of an exemption.

a. When we may not assert an exemption

We may forfeit our right to invoke a FOIA exemption to withhold certain information if we previously disclosed that same information under the following exemptions:

• Exemption 2, Internal Personnel Rules and Practices

• Exemption 4, Trade Secrets and Commercial or Financial Information

• Exemption 5, Interagency or Intra-agency Memorandums

• Exemption 6, Invasion of Privacy

• Exemption 7, Investigatory Records

b. Prior disclosure never waives exemption 3

The Internal Revenue Code (IRC) (26 USC 6103 ) prohibits disclosure of materials protected by exemption 3. Therefore, prior disclosure of exemption 3 material never waives this exemption.

• Since exemption 3 refers back to a law forbidding disclosure, we can only release exemption 3 material in accordance with that law.

• If we illegally released material, any subsequent illegal release of the same material would be another violation of law.

EXAMPLE: When Mrs. B filed a claim for retirement benefits, she mentioned that she had not seen her adult son in 10 years. The claims representative queried the son’s record and found no posted earnings since 1993. She told Mrs. B that her son had no earnings in recent years. The IRC does not permit disclosure of information about earnings or wage reports reported by an employer for a person, so this disclosure was not permissible. Mrs. B writes to the FOI Officer for more information about her son’s last employment. The FOI Officer must deny the request. To confirm the information previously given by the claims representative would be another violation of law.

C. Requests from members of Congress

1. Members of Congress

We receive many requests from members of Congress. A congressional representative’s request may:

• relate to a specific or general legislative function;

• be inquiring on behalf of a constituent; or

• have a personal interest.

The FOIA specifically prohibits relying on one of its exemptions to withhold information from The Congress; however, a request from a member of Congress is not always a request from The Congress.

2. Request on behalf of the Congress

A congressional representative may request information on behalf of the Congress through a committee or subcommittee. If so, the request is on behalf of the Congress in pursuit of its official duties. A request on behalf of the Congress is not a FOIA request. Therefore, do not invoke FOIA exemptions to withhold information. Coordinate these type requests with the Office of Legislative and Congressional Affairs.

3. Request on behalf of a constituent

If a congressional representative makes a request on behalf of a constituent, we may disclose the same information to the representative that the constituent is entitled to receive and charge the appropriate fees. For more information, see GN 03313.105.

4. Other requests from members of Congress

If a congressional representative makes a request that is neither on behalf of a constituent nor on behalf of the Congress, treat the request the same as you would a request received from any other member of the public. In this instance, the congressional representative has the same rights to the information as any other member of the public.

D. Court orders and subpoenas for production of documents and requests for testimony

1. Court orders

For all court orders for the production of documents, notify the Regional Chief Counsel in the field, or the Office of the General Counsel in CO.

2. Touhy regulations

SSA regulations at 20 CFR Part 403 describe the procedures for handling requests for employee testimony and the production of records and information in legal proceedings to which SSA is not a party. These regulations do not apply, however, when the request involves any of the following:

• An SSA administrative proceeding;

• A legal proceeding to which SSA is a party;

• A request from the U.S. Department of Justice;

• A criminal proceeding to which the U.S. is a party;

• A legal proceeding initiated by State or local authorities arising from an investigation or audit initiated by, or conducted in cooperation with, SSA’s Office of the Inspector General;

• A request from either house of Congress (see GN 03350.005A.2.d);

• A law enforcement proceeding related to threats or acts against SSA, its employees, or its operations; or

• A Federal law or regulation expressly requires a Federal employee to provide testimony.

3. Requests for testimony

Testimony is an oral or written statement to be given under oath or under penalty of perjury about any SSA function or any information or record created or acquired by SSA in the performance of its official duties. Testimony may include any of the following:

• A statement during a personal appearance in court, at a deposition, or at an administrative hearing;

• An affidavit; or

• A statement made in response to a discovery request.

An SSA employee may not give testimony in a legal proceeding in accordance with these regulations unless the Commissioner or designee approves a request for such testimony. For all requests for employee testimony, notify the Regional Chief Counsel in the field, or the Office of the General Counsel in CO.

4. Subpoenas Duces Tecum

A subpoena duces tecum is a request for testimony and documents. Do not process subpoenas duces tecum as FOI requests. Process all subpoenas duces tecum in accordance with the instructions in this section.

E. Requests for DDS records

Requests for State Disability Determination Services (DDS) records may or may not be subject to the Federal FOIA. Most States have a State FOIA, which may apply to some requests for DDS records. For purposes of disclosure, we consider records for which we have published a Privacy Act system of records notice to be SSA records. Other DDS records, such as personnel records, are not SSA records, and the DDS should process such requests according to State law.

F. FOIA processing time limitations

1. Decisions

The FOIA requires agencies to:

• make a decision within 20 working days of receipt of a FOIA request;

• notify the requester of that decision; and

• inform the requester of appeal rights when appropriate.

NOTE:  We need not actually release the records within 20 working days; only decide whether to release them. The actual release can take longer; however, do not delay releasing information unnecessarily. For example, if we need to send a voluminous amount of records to a contractor for copying or conversion to another format, we can notify the requester of our decision on disclosure and provide the records when the copying or conversion is completed.

2. Time extensions and acknowledgment letters

a. Unusual circumstances

We may extend the 20-day time limit by an additional 10 days if we must:

• search for and collect the records from other facilities;

• search for and collect voluminous records; or

• consult with other components or another agency that has an interest in the records.

b. Notification

Notify the requester of our reason for a time extension and the date when we expect to send a decision. Do not specify a date in the notice that would result in an extension of more than 10 working days.

c. Negotiating with the requester

If we cannot process the request within the 20-day time limit:

• notify the requester accordingly and

• give the requester an opportunity to limit the scope of the request.

If the requester refuses to limit the scope or otherwise modify the request, the courts will consider this as a factor in determining whether exceptional circumstances exist and may allow us additional time to complete our review of the records.

G. Requests for expedited processing

1. Compelling need

We will provide expedited processing for requesters who show a compelling need for a speedy response when:

• failure to obtain the records on an expedited basis could reasonably be expected to pose an imminent threat to the life or physical safety of a person; or

• the request is from a person primarily engaged in disseminating information, such as member of the news media, and there is an urgency to inform the public concerning actual or alleged Federal Government activity.

2. Denial of legal right

We will provide expedited processing if the requester explains in detail to our satisfaction that a prompt response is needed because the requester may be denied a legal right, benefit, or remedy if not granted the requested information, and that the requested information cannot be obtained elsewhere within a reasonable amount of time.

3. Time limit for response

Respond to requests for expedited processing within 10 days. If we decide to grant expedited processing, notify the requester of our decision on disclosure as soon as practicable.

4. Court review

If we fail to meet the 20-day deadline (or extension date), the requester may deem the request denied and seek review in a United States district court.

H. Fee waiver requests

The FOIA permits us to waive or reduce fees when furnishing the requested information is in the public’s interest. The FOIA Reform Act of 1986 specifically defines the term “public interest” by providing that we waive or reduce fees if disclosure is likely to contribute significantly to the public’s understanding of our operations or activities and is not primarily in the commercial interest of the requester. A requester may seek a fee waiver whether we charge a fee under the FOIA or Privacy Act fee schedule pursuant to section 1106(c) of the Social Security Act .

1. Who may request fee waiver?

Any person who makes a FOIA request may request a fee waiver. For information about requests that are not FOIA requests, see GN 03301.015 B.4.

2. What do we do with waiver requests?

Forward all fee waiver requests to the FOI Officer in OPD. The FOI Officer decides whether the requester meets the fee waiver requirements and notifies the requester accordingly.

3. Fee waiver denials

The FOI Officer notifies the requester, in writing, of the decision denying a fee waiver. The denial notice also informs the requester that he or she has 30 days from receipt of the denial notice to file an appeal.

4. Fee waiver denial appeals

The Executive Director for OPD has delegated authority to decide appeals on fee waiver denials.

5. Court review

If the OPD Executive Director denies the request for a fee waiver on appeal, the requester may seek further review in a United States District Court.

I. SS-5 requests involving extreme age

The “120 year rule” applies when disclosing information from our records for extremely aged persons when no date of death exists. Under this policy, we assume that a person is alive unless their birth date exceeds 120 years or we have proof of the person’s death. We normally do not assume that an individual is deceased without proof of death (e.g., death certificate, obituary, newspaper article, or police report). However, for extreme age cases we can release an SS-5, in its entirety, including the parents’ names of the number holder (NH), in response to a request in the following instances:

• the NH’s birth date exceeds 100 years and we have proof of the NH’s death; or

• the NH’s birth date exceeds 120 years and no proof of death exists.

The presumption of death for purposes of responding to FOIA requests does not apply to any other agency decision. To respond to SS-5 requests involving extreme age, use the language in this section and the instructions contained in GN 03315.010B.4. Always include the appropriate appeal paragraph.

1. SS-5 denial response language

Use the following language to respond to requests for SS-5 applications involving extreme age when we deny the request.

After a review of our records, we cannot release a copy of ###’s application for a Social Security number (SS-5) to you. Our records do not indicate that this person is deceased. We realize that ### would be of advanced age. However, our current policy does not allow us to release this information without acceptable proof of a person’s death unless the person exceeds 120 years of age. If you can provide acceptable proof of death, we can release this information to you. Acceptable proofs of death include:

• a certified copy of a public record of death of the number holder; or

• a statement of death by the funeral director; or

• a statement of death by the attending physician or the superintendent, physician, or intern of the institution where the person died; or

• a certified copy of the coroner’s report of death or the verdict of the coroner’s jury; or

• a certified copy of an official report of death or finding of death made by an agency or department of the U.S. which is authorized or required to make such a report or finding in the administration of any law of the U.S.; or

• an obituary with sufficient identifying information.

The Privacy Act of 1974 (5 U.S.C. § 552a) restricts disclosure of the information you requested without consent. However, the Freedom of Information Act (FOIA) (5 U.S.C. § 552) provides an exception to permit disclosure to you without consent.

To determine whether the FOIA requires disclosure, we must balance the public interest in releasing the information against the individual's right to privacy. The only public interest we may consider is whether the information would improve public oversight and public accountability by giving insight into the agency's performance of its duties. I have not found that disclosing this information would provide any such insight. I have, therefore, determined that disclosing this information would be a clearly unwarranted invasion of personal privacy, and that the information is exempt under the FOIA (5 U.S.C. § 552(b)(6)).

In considering whether this exemption applies, agencies must balance the public interest in disclosure against the privacy interest of the individual(s) who is the subject of the requested information. The Supreme Court set out certain guiding principles for such determinations in Department of Justice v. Reporters Committee for Freedom of the Press, 489 U.S. 749 (1989).

We must determine whether disclosure would affect a personal privacy interest. There is clearly a substantial personal privacy interest in the personal details furnished to the Government. According to the Supreme Court case cited above, the only public interest that agencies should consider is whether disclosing the information would shed light on the way an agency performs its statutory duties.

We may not consider the identity of the requester or the purpose for which the requester will use the information. While the public has an interest in knowing how SSA administers the Social Security Act, disclosing information containing personal details about named individuals would not shed light on how the agency performs its statutory duties. Therefore, disclosing such personal information would be a clearly unwarranted invasion of personal privacy, and the FOIA exempts the information from disclosure.

2. SS-5 response language when one or both parents’ names redacted

Use the following language to respond to requests for SS-5 applications involving extreme age when we redact one or both parents’ names.

I am enclosing a copy of the original application for a Social Security number (SS-5), as requested. We have deleted (the mother’s name, father’s name, or parents’ names, as appropriate) from the enclosure. Our current policy does not allow us to release (the mother’s, the father’s, the parents’) name(s) without proof of (his, her, their) death unless we have acceptable proof of death for a number holder who is at least 100 years of age, or the number holder exceeds 120 years of age. Acceptable proofs of death include:

• a certified copy of a public record of death of the number holder; or

• a statement of death by the funeral director; or

• a statement of death by the attending physician or the superintendent, physician, or intern of the institution where the person died; or

• a certified copy of the coroner’s report of death or the verdict of the coroner’s jury; or

• a certified copy of an official report of death or finding of death made by an agency or department of the U.S. which is authorized or required to make such a report or finding in the administration of any law of the U.S.; or

• an obituary with sufficient identifying information.

Our policy is based upon the Privacy Act of 1974 (5 U.S.C. § 552a). The Privacy Act restricts disclosure of the information you requested without consent. In some cases, the Freedom of Information Act (FOIA) (5 U.S.C. § 552) provides an exception to permit disclosure to you without consent.

To determine whether the FOIA requires disclosure, we must balance the public interest in releasing the information against the individual's right to privacy. The only public interest we may consider is whether the information would improve public oversight and public accountability by giving insight into the agency's performance of its duties. I have not found that disclosing this information would provide any such insight. I have, therefore, determined that disclosing this information would be a clearly unwarranted invasion of personal privacy, and that the information is exempt under the FOIA (5 U.S.C. § 552(b)(6)).

In considering whether this exemption applies, agencies must balance the public interest in disclosure against the privacy interest of the person(s) who is the subject of the requested information. The Supreme Court set out certain guiding principles for such determinations in Department of Justice v. Reporters Committee for Freedom of the Press, 489 U.S. 749 (1989).

We must determine whether disclosure would affect a personal privacy interest. There is clearly a substantial personal privacy interest in the personal details furnished to the Government. According to the Supreme Court case cited above, the only public interest that agencies should consider is whether disclosing the information would shed light on the way an agency performs its statutory duties.

We may not consider the requester’s identity or the purpose for which the requester will use the information. While there is public interest in knowing how SSA administers the Social Security Act, disclosing information containing personal details about named individuals would not shed light on how the agency performs its statutory duties. Therefore, disclosing such personal information would be a clearly unwarranted invasion of personal privacy, and the FOIA exempts the information from disclosure.

If you can provide acceptable proof of death for ###’s (mother, father, parents, as appropriate), we can release the withheld information to you. The proof of death for the parent(s) must contain enough information for us to determine that the proof of death refers to the same individual(s) shown on the requested SS-5.

J. Processing requests for information

1. Can we comply with a request for information?

The FOIA requires disclosure of agency records unless one or more of the nine FOIA exemptions apply. For a description of the nine FOIA exemptions, refer to GN 03301.015B.5.

2. Do we have the requested information?

Agency employees who are familiar with the subject matter area of a request should be able to locate agency records responsive to a request. We do not have the requested records if:

• the record is maintained by another agency;

• the record does not exist;

• the record is destroyed; or

• we would have to create the record or compile it from other records.

Creating a record does not include generating a record from an existing program or query or making deletions in a record. Consult with the regional PA/FOIA coordinator or OPD on all requests involving creating a record.

Employees should not interpret a request so strictly that we deny the requester information we know exists in a different form. For example, we receive requests for copies of checks. The Department of the Treasury maintains copies of checks. For information about when it is appropriate to request check photocopies, see GN 02406.140.

In accordance with the provisions of the FOIA, all requesters must:

• reasonably describe the record(s) sought; or

• provide sufficient information to enable us to locate the record(s) sought.

3. Can we disclose the information?

a. Oral requests for information

We may informally respond orally to oral requests (in person or by phone) for information that we cannot disclose and explain the basis for not disclosing the information.

• Advise the requester that only the FOI Officer has the authority to make a formal decision on a request for information.

• An oral request and response do not generate appeal rights since there is no written documentation.

b. Written requests for information

Under certain circumstances, the FOI Officer may treat an oral request as a written request if received directly. In most cases, however, a written request is required. Requesters may submit written requests to the FOI Officer by following our online Guide to FOIA Requests .

If we fully honor a request for information, send a notice to the requester.

• Enclose the documents with the notice; or advise the requester where the documents are; or advise the requester where and when we will make the documents available for access.

• Explain the fees we charged for processing the request, if any, and advise the requester how to pay the fees.

Only the FOI Officer has authority to deny FOIA requests. SSA components should forward any probable FOIA denial (in full or in part) through the component FOIA Coordinator to OPD. Where possible, include the requested documents or a reason why you cannot provide the documents.

4. Is there a fee for providing the information?

To determine if there is a fee for processing a request, refer to Privacy Act and FOIA Fees at GN 03311.000

If we fully honor a request for information, send a notice to the requester.

• Enclose the documents with the notice; or advise the requester where the documents are; or advise the requester where and when we will make the documents available for access.

• Provide an explanation of the fees, if any, and advise the requester how to pay the fees.

5. Oral requests for information

a. Oral responses

• You may provide an informal oral response to oral requests (in person or by phone) for information that we cannot disclose, explaining the basis for not disclosing the information.

• Oral requests and oral responses do not generate appeal rights since there is no written documentation.

• Advise the requester that only the FOI Officer has the authority to make a formal decision on a request for information.

• The requester may submit a written request to the FOI Officer. A Guide to FOIA Requests is available from our Internet website at http://mwww.ba.ssa.gov/foia/html/foia_guide.htm .

b. FOI Officer receives an oral request directly

Under certain circumstances, the FOI Officer may treat an oral request as a written request if received directly. In most cases, however, a written request is required.

6. Written requests

Only the FOI Officer (Deputy Director in OPD) has authority to deny FOIA requests. Forward any probable FOIA denial (in full or in part) through your component FOIA Coordinator to OPD. Where possible include the requested documents or a reason why you are not providing the documents. Component FOI Coordinators may recommend special language to be included in OPD’s response, as appropriate.

Send the request to the FOI Coordinator as follows:

Most denial notices are prepared in OPD. However, some offices that receive a large volume of similar requests may prepare a written denial notice for the signature of the FOI Officer and send it to the coordinator along with the request.

The denial notice must include:

• the FOIA exemption that justifies the denial;

• an explanation of how the exemption applies to the requested information;

• a description of the materials being withheld and the quantity of withheld material;

• a decision about whether to charge or waive fees, when appropriate;

• the name, title, and address of the official to whom the requester may appeal; and

• the FOI Officer’s signature and title.