TN 3 (11-98)

A. Introduction

The FOIA affects SSA's policies on what administrative and instructional material must be released for the information of the public. It may also require the release of personal information if one or more of the FOIA exemptions do not allow SSA to withhold the records.

The FOIA as amended by EFOIA amendments of 1996, gives the public access to government information and records maintained in an electronic format, provides for expedited processing of certain requests, establishes “electronic reading rooms,” eliminates an agency “backlog of work” as a justification for delay in processing requests, requires redacted material to be estimated or indicated in an agency's response, and requires an agency reference guide on FOIA to be made available.

B. Policy

1. General

The FOIA mandates disclosure to the public of all Federal agency records, unless one of nine specific exemptions applies.

Even though the FOIA permits an agency to withhold a record that meets one of the nine exemptions, it does not require withholding. There may be circumstances under which SSA may choose to disclose if:

• Section 1106(a), the PA and any other applicable statutes permit, and

• no demonstrable harm would result.

The FOIA also mandates a 20-day time limit for deciding whether or not the requested information can be disclosed.

2. Scope

The FOIA applies to all records maintained by a Federal agency.

This includes (but is not limited to):

• Final agency opinions in the adjudication of claims;

• Statements of policy and interpretations adopted by the agency but not published in the Federal Register  (e.g. Commissioner's Decisions, Social Security Rulings, etc.); and

• Administrative staff manuals and instructional material; and

• Personally identifiable records.

NOTE: The FOIA requires that a list of this material be published in the Federal Register and made available to the public for inspection and copying. This list is available in the FOIA Indexes of Administrative Manuals and Instructions. Each SSA field component receives a copy of the Indexes, which are updated quarterly. The indexes are also maintained in the FOIA Reading Room on SSA's INTERNET site at http://www.ssa.gov.

3. What is an FOIA Request

An FOIA request is any request from a member of the public for records in possession or control of a Federal agency. Under the FOIA, a “member of the public” includes requests from individuals, corporations, State agencies and foreign entities. Requests from other Federal agencies, or from Federal or State courts, are not covered by the FOIA.

EXCEPTION: Under certain circumstances a subpoena may be processed as an FOIA request when it involves records not subject to Regulation No. 1. (See GN 03330.000 for information about court orders and subpoenas.)

Any office may receive an initial request for records under the FOIA. The request need not be in writing and does not need to cite the FOIA.

4. What is Not an FOIA Request

The following are not treated as FOIA requests:

• Requests for explanations of policies and procedures, the status of claims, and general information about Social Security programs (such as public information material); and

• Requests by individuals (or persons authorized to act in their behalf) for access to their own records that are retrieved by a personal identifier, unless a request has already been denied under the PA (also see GN 03360.000).

A request by a parent of a minor child or by a guardian of an incompetent individual seeking records on behalf of that person is generally a PA request. However, such requests should be referred to the FOI Officer for consideration under the FOIA if access cannot be granted under the PA because the parent or guardian is not acting on behalf of that person.

NOTE: While PA requests are not processed as FOIA requests, they should now be reported as FOIA requests for the purpose of the Annual Report on FOIA activities.

5. FOIA Exemptions

There are nine exemptions to the FOIA. The FOI Officer makes all decisions involving exemptions.

A complete list of the exemptions is in GN 03301.099C., Exhibit 2. However, only the following six usually apply to SSA records:

a. Exemption 2, Internal Personnel Rules and Practices

This exemption is cited as the basis for withholding records solely related to internal personnel rules and practices, such as certain records or procedures that could cause a breach in security.

EXAMPLES:

• Instructions for operating terminals, computer access codes, etc. This kind of instruction would not normally affect the rights of the public.

• Those portions of the Systems Security Handbook which could enable unauthorized individuals to gain access to confidential information or to alter SSA records.

b. Exemption 3, Prohibited by Law

This exemption is cited when a disclosure is prohibited by a law that leaves no discretion as to what may be exempt, or that establishes specific criteria for withholding information.

EXAMPLES:

• The Internal Revenue Code restricts disclosure of tax return information as defined in GN 03320.001B.

• 42 U.S.C. 290dd-3 and 290ee-3 restrict disclosure of information regarding identity, diagnosis, prognosis or treatment of any patient when such information is maintained in connection with a Federally-assisted drug or alcohol abuse prevention function. (See GN 03305.020.)

c. Exemption 4, Trade Secrets and Commercial or Financial Information

This exemption is cited to withhold information obtained from outside Government that relates to “trade secrets and commercial or financial information which, if disclosed, would either cause substantial harm to a person's ability to compete with others in his business or impair the Government's ability to obtain needed information.” This may include detailed information concerning profits, losses and business costs.

This exemption does not apply to SSA program records and is generally used in connection with procurement records.

d. Exemption 5, Interagency or Intra-agency Memorandums

This exemption is cited to withhold “interagency or intra-agency memorandums or letters which would not be available by law to a party other than a party in litigation with the agency.”

The exemption covers opinions (such as OGC opinions), recommendations, suggestions or judgmental analyses by various field and central office components of SSA as exchanged or developed before the making of policy or decisions. It does not cover materials that contain purely factual information or that document or explain decisions already made.

e. Exemption 6, Invasion of Privacy

This exemption is cited to withhold any personal information, “the disclosure of which would constitute a clearly unwarranted invasion of personal privacy.” It applies in any situation in which the privacy interest in the requested information outweighs the public interest (if any) served by disclosing the information.

GN 03316.105, GN 03316.110, GN 03316.115, GN 03316.120, GN 03316.125 lists disclosures which have been determined not to be unwarranted invasions of personal privacy.

A U.S. Supreme Court decision in 1989 (U.S. Department of Justice vs. Reporters Committee on Freedom of the Press) ruled that this exemption applies to personally identifiable information about living individuals unless:

• Disclosure would inform the public about a Federal agency's performance of its statutory duties, and

• This public interest outweighs the privacy interests of the individuals to whom the information pertains.

EXAMPLE: A requester wants to know whether his neighbor receives Social Security benefits. Disclosure would not serve the public interest and would constitute an invasion of the neighbor's privacy, so Exemption 6 applies.

f. Exemption 7, Investigatory Records

This exemption is cited to withhold records compiled for law enforcement purposes if the production of such records:

• could reasonably be expected to interfere with enforcement proceedings,

• would deprive a person of a right to a fair trial on any impartial adjudication,

• could reasonably be considered an unwarranted invasion of personal privacy,

• could reasonably be expected to disclose the identity of a confidential source,

• could reasonably be expected to disclose confidential information furnished only by a confidential source (in the case of a record compiled by a criminal law enforcement authority in an investigation, or by an agency conducting lawful national security intelligence),

• would disclose investigative techniques and procedures or guidelines for law enforcement investigations or prosecutions (if such disclosure could risk circumvention of the law), or

• could reasonably be expected to endanger the life or physical safety of law enforcement personnel.