[Federal Register Volume 66, Number 9 (Friday, January 12, 2001)]
[Rules and Regulations]
[Pages 2805-2811]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 01-838]


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SOCIAL SECURITY ADMINISTRATION

20 CFR Parts 401, 402 and 403

RIN 0960-AE95


Testimony by Employees and the Production of Records and 
Information in Legal Proceedings

AGENCY: Social Security Administration.

ACTION: Final rule.

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SUMMARY: The Social Security Administration (SSA) is implementing 
procedures governing testimony by SSA employees and the production of 
official records and information in legal proceedings to which SSA is 
not a party. This rule provides procedures, requirements, and 
information on how SSA will handle these matters and expressly 
prohibits any production or testimony except as approved by the 
Commissioner of Social Security or as Federal law otherwise provides. 
This rule conserves and ensures more efficient use of SSA's resources 
in meeting the Agency's mission, promotes consistency in 
decisionmaking, minimizes the possibility of involving SSA in issues 
not related to its mission, maintains SSA's impartiality, protects 
sensitive and confidential information and the deliberative processes 
of SSA, and enhances SSA's ability to respond efficiently to requests 
for records, information, or testimony in a legal proceeding.

EFFECTIVE DATE: February 12, 2001.

FOR FURTHER INFORMATION CONTACT: Brad Howard, Attorney, Office of 
General Law, Office of the General Counsel, Room 617 Altmeyer Building, 
6401 Security Boulevard, Baltimore, MD 21235-6401, (410) 966-1817, for 
information about this rule. For information on eligibility or claiming 
benefits, call our national toll-free number, 1-800-772-1213 or TTY 1-
800-325-0778.

SUPPLEMENTARY INFORMATION:

Background

    On May 10, 2000, SSA published in the Federal Register a notice of 
proposed rulemaking proposing to establish procedures governing 
testimony by SSA employees and the production of official records and 
information in legal proceedings to which SSA is not a party (65 FR 
30037-30043). Prior to March 31, 1995, SSA was part of the Department 
of Health and Human Services (DHHS) and followed the DHHS regulations 
at 45 CFR part 2 regarding these matters. The Social Security 
Independence and Program Improvements Act of 1994 (SSIPIA), Pub. L. 
103-296, established SSA as an independent agency in the executive 
branch of the Federal Government effective March 31, 1995, and vested 
general regulatory authority in the Commissioner of Social Security 
(the Commissioner). Under sec. 106(b) of the SSIPIA, DHHS regulations 
in effect immediately before March 31, 1995, that relate to functions 
vested in the Commissioner by reason of SSA's independence, continue to 
apply to SSA until the Commissioner modifies, suspends, terminates, or 
repeals them. This rule establishes a new Part 403 of our regulations, 
which sets forth the SSA rules for responding to requests for 
information, records, or testimony in legal proceedings. The DHHS 
regulations at 45 CFR part 2 will no longer apply to SSA.
    This rule, issued under the authority of 5 U.S.C. 301, is similar 
to rules issued by numerous Government agencies and departments. 
Section 301 of Title 5, the ``housekeeping statute,'' authorizes the 
head of an executive agency to issue ``regulations for the government 
of his department, the conduct of its employees, the distribution and 
performance of its business and the custody, use, and preservation of 
its records, papers, and property.'' In United States ex rel. Touhy v. 
Ragen, 340 U.S. 462 (1951), the Supreme Court upheld the authority of 
Federal agencies to establish procedures pursuant to Sec. 301 similar 
to those established here. Federal courts have consistently held that a 
person seeking testimony or records from an agency must comply with the 
agency's ``Touhy regulation'' before seeking judicial enforcement of a 
subpoena. In addition, under Sec. 702(a)(5) of the Social Security Act, 
42 U.S.C. Sec. 902(a)(5), the Commissioner has authority to promulgate 
regulations necessary to the efficient administration of SSA functions.
    In the notice of proposed rulemaking published in the Federal 
Register on May 10, 2000, SSA requested comments by July 10, 2000. SSA 
received three comments on the proposed rule.
    One commenter raised several issues concerning health and safety in 
Social Security offices. He essentially recommended that we revise the 
rule to allow testimony from employees in every case involving the 
health and safety of our employees. We share the commenter's general 
concerns about the importance of workplace safety. However, we are not 
adopting his recommendation because we believe that the rule addresses 
his concerns.
    The commenter first noted that United States Attorneys' Offices may 
decline prosecution in situations where an employee is threatened or 
assaulted at work. In such situations, the employee often files charges 
with the local police and the matter proceeds in state court. He 
recommended that we clarify that testimony of the employee and 
employee-witnesses requires no prior approval in such cases. However, 
section 403.115(b)(7) renders the procedural requirements established 
in this rule inapplicable to state or local law enforcement proceedings 
related to threats or acts against SSA or its

[[Page 2806]]

employees. In such circumstances, our employees may be released to 
testify without requiring the prosecutor to make a request pursuant to 
this rule.
    The commenter's next concern involves the situation where an 
employee is injured outside of work. In this situation, the employee's 
own testimony would be based on matters unrelated to his or her actual 
work activities; therefore, no request pursuant to this rule would be 
necessary for that employee's testimony. However, this rule is intended 
precisely for the situation where one of the parties to this private 
lawsuit seeks the testimony of another Social Security employee. If the 
testimony of the other employee depends on information obtained in the 
course of Social Security business, we believe it is appropriate for 
the party requesting such testimony to proceed under this rule.
    The commenter also suggested that in situations where an employee 
is injured and required to go through a Federal workers compensation 
proceeding, we should routinely allow employee testimony. We believe 
that this concern is addressed by section 403.115(b)(7), which renders 
the procedural requirements established in this rule inapplicable in 
cases where Federal law or regulations require employees to provide 
testimony. In such cases, our employees can be released to testify 
without requiring the individual seeking such testimony to make a 
request pursuant to this rule.
    The commenter's final concern was that employees should be allowed 
to provide testimony in a product liability lawsuit involving equipment 
used on the job for Social Security. We believe that it is particularly 
appropriate to apply the procedures established in these regulations to 
this kind of case. The Commissioner must consider the various factors 
articulated in this rule and the particular facts surrounding a request 
for testimony in a case such as this. Whether to provide testimony and 
the form of that testimony should be left to the Commissioner to decide 
on a case-by-case basis.
    Another commenter, concerned about fraud and misinformation in 
domestic support cases, suggested that it would always be in SSA's 
interests to provide records and testimony in legal proceedings where 
doing so could prevent improper payments of public benefits or improper 
support payments. SSA places a high premium on preventing program fraud 
and safeguarding the trust funds. However, as noted in the preamble to 
the proposed rule, SSA must balance other important interests with the 
need for program integrity when assessing a request for testimony or 
records. Among these interests are minimizing the possibility of 
involving SSA in issues not related to its mission, maintaining SSA's 
impartiality, and protecting sensitive and confidential information and 
the deliberative processes of SSA. To the extent that the commenter is 
suggesting that SSA should consider fraud prevention and program 
integrity when it determines whether to release records or authorize 
testimony, we agree. Current disclosure regulations permit disclosures 
to law enforcement officials when necessary to investigate or prosecute 
fraud or other criminal activity involving the social security program. 
See 20 CFR 401.155(c). Moreover, this final rule already includes among 
the items the Commissioner will consider when evaluating whether to 
grant a request for testimony, ``Whether you need the testimony to 
prevent fraud or similar misconduct.'' 20 CFR 403.130(k). However, if 
the commenter is suggesting that a general exclusion from these rules 
should apply to all requests arising out of domestic support cases or 
any other cases where a party alleges fraud, we disagree. Such an 
exclusion could harm other important SSA interests, including those 
listed above. We, therefore, have not made any changes in the 
regulations to address this comment.
    The third commenter noted thatSec. 403.110 includes State agency 
employees and consultative examiners (CEs) as persons subject to SSA 
jurisdiction and control and, therefore, covered by this rule. She 
expressed concern that the rule does not explain the procedures these 
individuals must follow when they receive a direct request for 
testimony and suggested that we include provisions directing State 
agency employees and CEs to forward all requests to SSA. As a general 
matter, we will provide procedures applicable to various parties 
affected by this rule through internal program instructions. However, 
we also note that, while all employees (including State agency 
personnel and CEs) will be forwarding applications submitted under this 
rule to SSA headquarters for a decision on whether to permit the 
testimony, neither SSA nor the Department of Justice can provide State 
or private personnel with legal representation.

Explanation of Final Rule

    SSA administers a wide variety of programs that affect almost 50 
million beneficiaries and the general public. SSA maintains records on 
virtually every individual in the United States. The documents that SSA 
obtains or generates and our employees' expertise frequently are sought 
for use in legal proceedings in which SSA is neither involved nor has 
an interest. Each year, SSA receives thousands of requests for records 
and testimony. This rule establishes SSA policies and procedures 
applicable to requests for official Agency information, records, or 
testimony in legal proceedings.

Scope

    With some limited exceptions, this rule applies to all requests 
arising out of a legal proceeding for:
    (1) SSA information or records; or
    (2) Testimony from SSA employees concerning information acquired 
while performing official duties or because of the employees' official 
capacity.
    A request for both testimony and records or other information is 
treated as two separate requests--one for testimony and one for records 
or other information--because some procedures apply only to requests 
for testimony.
    This rule applies to a broad range of legal proceedings. It adopts 
the definition of ``record'' found in SSA disclosure regulations; 
clarifies that ``testimony'' encompasses all types of sworn statements; 
and expands the definition of SSA ``employee'' to include past 
employees, persons acting on the Agency's behalf, and persons subject 
to the Agency's disclosure regulations.


    Note: These definitions do not expand the Federal Government's 
obligation to provide legal representation.


    This rule explains that SSA employees may disclose records or other 
information only as permitted under the Agency's disclosure regulations 
and explains that SSA employees may provide testimony (even testimony 
related to records that the Agency may disclose) only with the 
Commissioner's explicit approval. The Commissioner may delegate this 
authority.
    This rule does not apply to requests for testimony:
     In an SSA administrative proceeding;
     Related to a case to which SSA is a party;
     From the United States Department of Justice;
     In a criminal proceeding to which the United States is a 
party;
     In 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;
     From either house of Congress;
     In a law enforcement proceeding related to threats or acts 
against SSA, its employees, or its operations; or

[[Page 2807]]

     Where Federal law or regulations expressly require a 
Federal employee to provide testimony.
    These exceptions refine those listed in the DHHS regulations to 
focus more on specific SSA goals. For example, instead of the broad 
exceptions related to criminal or civil proceedings where the United 
States or any Federal agency is a party (45 CFR Sec. 2.1(d)(1)), we 
provide more specific exceptions related to cases where SSA is a party, 
requests from the Department of Justice, and criminal proceedings to 
which the United States is a party. These changes address SSA's goals 
of full participation in cases when it is a party, and full cooperation 
and comity with the Agency's legal representatives (the Department of 
Justice). At the same time, the more narrowly tailored exceptions 
advance SSA goals of: (1) Not providing any unfair advantage to private 
litigants related to SSA testimony, and (2) making a full and fair 
evaluation of each applicant's need for testimony. Similarly, we have 
not included the exceptions found in the DHHS regulations that concern 
DHHS agencies and employees, and we have clarified the relationship 
between this rule and SSA's disclosure regulations (20 CFR parts 401 
and 402) and added exceptions to enhance our ability to assist those 
protecting and furthering the interests of SSA.

Certification

    Because we can certify copies of records in SSA's possession, the 
Commissioner generally will not authorize testimony intended only to 
authenticate those records. We have adopted certification rules 
different from those in the DHHS regulations to explain that SSA will 
not certify copies of records that have been released previously or 
have been otherwise outside SSA's control.

Fees

    We charge a fee for production of records or information and 
certification. The fee schedules for these services are established in 
20 CFR Secs. 401.95, 402.155-185, as appropriate. We will also charge 
for testimony. These fees will be calculated to reimburse the Federal 
Government for the full cost of providing testimony, such as, but not 
limited to, salary or wages of the witness for time needed to prepare 
for testimony, any necessary travel time, and the cost of travel and 
attendance at the legal proceeding.

Relation to SSA Disclosure Regulations (20 CFR parts 401 and 402)

    The DHHS regulations at 45 CFR part 2 do not apply to matters 
covered in the SSA disclosure regulations at 20 CFR part 401. See 45 
CFR Sec. 2.1(d)(6). Part 403 applies to such matters to the extent 
necessary to ensure that requests for testimony related to records 
receive the same treatment as other requests for testimony and to 
provide notice to requesters or courts when current law prohibits the 
disclosure of a requested record.
    Nothing in this rule affects the application of the rules in SSA's 
disclosure regulations. As provided in Sec. 403.105, if you request 
records or information in any legal proceeding covered by this rule, 
SSA employees will not disclose the requested records or information 
unless authorized by SSA disclosure regulations. If the disclosure is 
not authorized, the decision to deny the request would be made by the 
appropriate SSA official under the SSA disclosure regulations. However, 
if disclosure is not authorized and your request states that a response 
is due on a particular date, we will make every reasonable effort to 
provide you with the written notification described in Sec. 403.145 on 
or before the specified date. We will also send you any notices 
required by part 401 or 402. If disclosure of records or information is 
authorized by the disclosure regulations but you request testimony 
concerning those matters, your request will be subject to the process 
for applying for testimony described in Secs. 403.120 through 403.140. 
By focusing a requestor on the disclosure regulations (which usually 
require the consent of the individual to whom the requested record 
pertains) and the procedures for obtaining the Commissioner's 
permission for testimony, this rule emphasizes the most efficient means 
for obtaining information, records, or testimony.

Subpoenas Duces Tecum

    Under the DHHS regulations, subpoenas duces tecum were deemed to be 
requests for records under the Freedom of Information Act (FOIA), 5 
U.S.C. 552, and were to be processed under the DHHS FOIA regulations. 
See 45 CFR 2.5. SSA has concluded that a more useful approach given the 
nature of SSA's records and operations is to treat subpoenas duces 
tecum as requests for records within the scope of this rule. 
Accordingly, SSA will apply the procedures in this rule in responding 
to such subpoenas duces tecum. We are deleting the last sentence of the 
definition of ``request'' in 20 CFR 402.30 to clarify that subpoenas 
will not be treated as FOIA requests.

Procedures for Requesting Testimony

    In Sec. 403.120, we explain the process for requesting testimony. 
We have changed the procedures used under the DHHS regulations for 
requesting testimony from an SSA employee to standardize the procedures 
and to make them more administratively efficient.
    To obtain the testimony of an SSA employee in a legal proceeding, 
you must file a written application. As in the DHHS regulations, this 
rule requires that the application set out the nature of the testimony 
sought, explain why the information is not available by other means, 
and explain why it is in SSA's interest to provide the testimony. In 
addition, this rule requires you to explain in the application the 
relevance of the testimony to the issues involved in the legal 
proceeding and state the date and time when you need the testimony and 
the location where the testimony would be presented. Another change 
from the DHHS regulations is that this rule requires you to submit the 
application for testimony to us at least 30 days in advance of the date 
when you need the testimony, or explain in your application why your 
application is not timely and why it is in SSA's interest to review the 
untimely application. Failure to submit a complete and timely 
application could result in the denial of the application or could 
delay the decision on the application.
    Unlike the DHHS regulations, this rule establishes a central 
address for all applications for testimony by SSA employees for use in 
legal proceedings. This rule requires that all applications (except 
applications involving the Office of the Inspector General) be sent to 
our Office of the General Counsel in Baltimore, Maryland. By using a 
central location, we can issue quicker responses and handle 
applications more efficiently and consistently.

Deciding Whether To Approve an Application for Testimony--Factors 
We Consider

    Once we receive a complete application for testimony under this 
rule, the Commissioner will consider whether to approve it. The Office 
of the General Counsel or another component of SSA may review your 
application. In consultation with these offices, the Commissioner will 
make a final decision on your application and notify you of that 
decision. See Sec. 403.135. To decide whether to approve the 
application, and therefore to authorize

[[Page 2808]]

an SSA employee to provide testimony, the Commissioner will consider a 
number of factors, such as:
     Whether providing the testimony would violate a statute, 
Executive Order, or regulation;
     Whether providing the testimony will put confidential, 
sensitive, or privileged information at risk;
     Whether providing the testimony would unduly expend for 
private purposes the resources of the United States (including the time 
of SSA employees otherwise needed for official duties);
     Whether the testimony is available in a less burdensome 
form or from another source;
     Whether the testimony sought is limited to the purpose of 
the request;
     Whether you previously have requested the same testimony 
in the same or a related proceeding;
     Whether providing the testimony is in SSA's interest;
     Whether providing the testimony is consistent with SSA's 
policy of impartiality among private litigants;
     Whether another government agency is involved in the 
proceeding;
     Whether you need the testimony to prevent fraud or similar 
misconduct; and
     Whether providing the testimony sought is necessary to 
prevent a miscarriage of justice or to preserve the rights of an 
accused individual to due process in a criminal proceeding.

    See Sec. 403.130.
    Under this rule, if the Commissioner approves your application, the 
Commissioner decides the form by which SSA will provide the testimony. 
For example, if the Commissioner decides that SSA can meet your needs 
satisfactorily with a sworn written statement, he or she will not 
authorize oral testimony.

Procedures When the Commissioner Has Not Approved the Application 
for Testimony or When Disclosure Is Not Authorized

    Under the DHHS regulations, if the Agency head denied approval for 
an employee to comply with a subpoena for testimony, or did not act by 
the return date in the subpoena, the employee was to appear at the 
stated time and place unless advised by the Office of the General 
Counsel that responding to the subpoena would be inappropriate. The 
only actions the employee was authorized to take at this appearance 
were to provide a copy of the regulations and to respectfully decline 
to testify or produce any documents. See 45 CFR Sec. 2.4(b). Our 
experience suggests that under the prior procedures, SSA incurred the 
substantial cost of sending individuals to hearings, and that these 
appearances did not provide any significant service or information to 
the tribunal or the parties involved.
    Section 403.145 provides that, in cases where the Commissioner has 
not authorized testimony or SSA cannot respond to a request by the date 
specified in the application, SSA will make every reasonable effort to 
provide a statement to the requesting party and/or the court or other 
tribunal conducting the proceeding by the specified date. The statement 
will explain the following: compliance with the request is not 
authorized without the Commissioner's approval and approval has not yet 
been given; the requirements for obtaining approval; and, if the 
request complies with Sec. 403.120, the estimated time necessary for 
reaching a decision.
    If 20 CFR part 401 or 402 does not authorize disclosure of the 
requested records or information, the statement will explain the 
requirements for disclosure. Generally, if a response to a request for 
information, records, or testimony is due before the conditions of this 
Part or 20 CFR part 401 or 402 are met, no SSA employee will appear 
before the tribunal or the parties involved in the proceeding.

Waiving the Requirements of This Rule

    Under certain circumstances, this rule permits the Commissioner to 
grant an exception from any requirement related to your application for 
testimony. For example, Sec. 403.120(b) provides that if you apply for 
testimony by an SSA employee, you must submit the application at least 
30 days before the date the testimony is needed. If, however, the 
Commissioner believes that a waiver of this requirement would be in 
SSA's interests or would be necessary to prevent a miscarriage of 
justice, he or she may grant an exception. In addition, SSA employees 
may resolve requests for information informally (as they currently do 
in the ordinary course of business) by writing letters to claimants or 
other members of the public explaining procedures or other matters 
encompassed by the Social Security Act. Such letters may include 
information about an individual, if that person has provided written 
consent to disclosure as required in 20 CFR part 401. Such informal 
activity is not a waiver of the procedures described in this rule since 
it does not involve a sworn statement by an SSA employee, but is an 
alternative means of assisting a person without providing employee 
testimony.

Requests Involving the Office of the Inspector General

    This rule provides that if you seek records or information of the 
Office of the Inspector General or the testimony of an employee of the 
Office of the Inspector General, the regulations in Part 403 apply with 
two exceptions. The Inspector General or his or her designee will make 
any determination that the Commissioner would make. A separate address 
is provided for requests for Office of the Inspector General records or 
information or applications for the testimony of an employee of the 
Office of the Inspector General.

Procedural Nature of the Regulations

    This rule is procedural, not substantive. Nevertheless, failure to 
comply with the procedures may be a basis for denying a request. This 
rule does not create a right to obtain information, records, or the 
testimony of an SSA employee nor does it create any additional right or 
privilege not already available to SSA to deny such a request. 
Furthermore, this rule creates no independent right of action against 
SSA or any of its employees.

Changes to 20 CFR Part 401

    We are adding a new paragraph (c) to 20 CFR 401.180. That 
regulation contains SSA's rules on disclosure of information about 
individuals under court order or subpoena. New paragraph (c) contains a 
cross-reference to the new regulations contained in Part 403.

Regulatory Procedures

Executive Order 12866

    We have consulted with the Office of Management and Budget (OMB) 
and determined that this rule does not meet the criteria for a 
significant regulatory action under Executive Order 12866. Thus, it was 
not subject to OMB review. We have also determined that this rule meets 
the plain language requirement of Executive Order 12866 and the 
President's Memorandum of June 1, 1998.

Regulatory Flexibility Act

    We certify that this rule will not have a significant economic 
impact on a substantial number of small entities. Therefore, a 
regulatory flexibility analysis as provided in the Regulatory 
Flexibility Act, as amended, is not required.

Paperwork Reduction Act

    These regulations contain reporting requirements in section 
403.120(a), (b), and (c), which establish the requirements for applying 
for the

[[Page 2809]]

testimony of an SSA employee. We have the clearance from the Office of 
Management and Budget (OMB) under the requirements of 44 U.S.C. 3507, 
as amended by section 2 of the Paperwork Reduction Act of 1995, to 
collect this information. The OMB clearance number is 0960-0619. The 
clearance expires on September 30, 2003.
(Catalog of Federal Domestic Assistance Program Nos. 93.773 
Medicare-Hospital Insurance; 93.774 Medicare-Supplementary Medical 
Insurance; 96.001 Social Security-Disability Insurance; 96.002 
Social Security-Retirement Insurance; 96.003 Special Benefits for 
Persons Aged 72 and Over; 96.004 Social Security-Survivors 
Insurance; 96.005 Special Benefits for Disabled Coal Miners; and 
96.006 Supplemental Security Income)

List of Subjects

20 CFR Part 401

    Administrative practice and procedure, Freedom of information, 
Privacy

20 CFR Part 402

    Administrative practice and procedure, Freedom of information

20 CFR Part 403

    Courts, Government employees

    Dated: January 4, 2001.
Kenneth S. Apfel,
Commissioner of Social Security.


    For reasons set out in the preamble, Chapter III of Title 20 of the 
Code of Federal Regulations is amended as follows:

PART 401--PRIVACY AND DISCLOSURE OF OFFICIAL RECORDS AND 
INFORMATION

    1. The authority citation for Part 401 continues to read as 
follows:

    Authority: Secs. 205, 702(a)(5), 1106, and 1141 of the Social 
Security Act (42 U.S.C. 405, 902(a)(5), 1306, and 1320b--11); 5 
U.S.C. 552 and 552a; 8 U.S.C. 1360; 26 U.S.C. 6103; 30 U.S.C. 923.

    2. Section 401.180 is amended by adding paragraph (c) to read as 
follows:


Sec. 401.180  Courts.

* * * * *
    (c) Other regulations on testimony and production of records in 
legal proceedings. See Part 403 of this chapter for additional rules 
covering disclosure of information and records governed by this part 
and requested in connection with legal proceedings.

PART 402--AVAILABILITY OF INFORMATION AND RECORDS TO THE PUBLIC

    3. The authority citation for Part 402 continues to read as 
follows:

    Authority: Secs. 205, 702(a)(5), and 1106 of the Social Security 
Act (42 U.S.C. 405, 902(a)(5), 1306); 5 U.S.C. 552 and 552a; 8 
U.S.C. 1360; 18 U.S.C. 1905; 26 U.S.C. 6103; 30 U.S.C. 923b; 31 
U.S.C. 9701; E.O. 12600, 52 FR 23781, 3 CFR, 1987 Comp., p. 235.

    4. Section 402.30 is amended by revising the definition of request 
to read as follows:


Sec. 402.30  [Amended]

    Request means asking for records, whether or not you refer 
specifically to the FOIA. Requests from Federal agencies and court 
orders for documents are not included within this definition.
* * * * *

    5. A new part 403 is added to read as follows:

PART 403--TESTIMONY BY EMPLOYEES AND THE PRODUCTION OF RECORDS AND 
INFORMATION IN LEGAL PROCEEDINGS

Sec.
403.100  When can an SSA employee testify or produce information or 
records in legal proceedings?
403.105  What is the relationship between this part and 20 CFR parts 
401 and 402?
403.110  What special definitions apply to this part?
403.115  When does this part apply?
403.120  How do you request testimony?
403.125  How will we handle requests for records, information, or 
testimony involving SSA's Office of the Inspector General?
403.130  What factors may the Commissioner consider in determining 
whether SSA will grant your application for testimony?
403.135  What happens to your application for testimony?
403.140  If the Commissioner authorizes testimony, what will be the 
scope and form of that testimony?
403.145  What will SSA do if you have not satisfied the conditions 
in this part or in 20 CFR part 401 or 402?
403.150  Is there a fee for our services?
403.155  Does SSA certify records?

    Authority: Secs. 702(a)(5) and 1106 of the Act, (42 U.S.C. 
902(a)(5) and 1306); 5 U.S.C. 301; 31 U.S.C. 9701.


Sec. 403.100  When can an SSA employee testify or produce information 
or records in legal proceedings?

    An SSA employee can testify concerning any function of SSA or any 
information or record created or acquired by SSA as a result of the 
discharge of its official duties in any legal proceeding covered by 
this part only with the prior authorization of the Commissioner. An SSA 
employee can provide records or other information in a legal proceeding 
covered by this part only to the extent that doing so is consistent 
with 20 CFR parts 401 and 402. A request for both testimony and records 
or other information is considered two separate requests--one for 
testimony and one for records or other information. SSA maintains a 
policy of strict impartiality with respect to private litigants and 
seeks to minimize the disruption of official duties.


Sec. 403.105  What is the relationship between this part and 20 CFR 
parts 401 and 402?

    (a) General. Disclosure of SSA's records and information contained 
in those records is governed by the regulations at 20 CFR parts 401 and 
402. SSA employees will not disclose records or information in any 
legal proceeding covered by this part except as permitted by 20 CFR 
parts 401 and 402.
    (b) Requests for information or records that do not include 
testimony.
    (1) If you do not request testimony, Secs. 403.120-403.140 do not 
apply.
    (2) If 20 CFR part 401 or 402 permits disclosure to you of any 
requested record or information, we will make every reasonable effort 
to provide the disclosable information or record to you on or before 
the date specified in your request.
    (3) If neither 20 CFR part 401 nor 402 permits disclosure of 
information or a record you request, we will notify you as provided in 
Sec. 403.145. We will also send you any notices required by part 401 or 
402.


Sec. 403.110  What special definitions apply to this part?

    The following definitions apply:
    (a) Application means a written request for testimony that conforms 
to the requirements of Sec. 403.120.
    (b)(1) Employee includes--
    (i) Any person employed in any capacity by SSA, currently or in the 
past;
    (ii) Any person appointed by, or subject to the supervision, 
jurisdiction, or control of SSA, the Commissioner of Social Security, 
or any other SSA official, currently or in the past; and
    (iii) Any person who is not described elsewhere in this definition 
but whose disclosure of information is subject to the regulations at 20 
CFR part 401, currently or in the past.
    (2) For purposes of this paragraph (b), a person subject to SSA's 
jurisdiction or control includes any person hired as a contractor by 
SSA, any person

[[Page 2810]]

performing services for SSA under an agreement (such as an officer or 
employee of a State agency involved in determining disability for SSA), 
and any consultant (including medical or vocational experts or medical 
services or consultative examination providers), contractor, or 
subcontractor of such person. Such a person would also include any 
person who has served or is serving in any advisory capacity, formal or 
informal.
    (3) For purposes of this paragraph (b), a person employed by SSA in 
the past is considered an employee only when the matter about which the 
person would testify is one in which he or she was personally involved 
while at SSA; where the matter concerns official information that the 
employee acquired while working, such as sensitive or confidential 
agency information; where the person purports to speak for SSA; or 
where significant SSA resources would be required to prepare the person 
to testify. Such a person would not be considered an employee when the 
person will rely only on expertise or general knowledge he or she 
acquired while working at SSA.
    (c) Commissioner means the Commissioner of Social Security or his 
or her designee(s).
    (d) Legal proceeding includes any pretrial, trial, and post-trial 
stage of any existing or reasonably anticipated judicial or 
administrative action, hearing, investigation, or similar proceeding 
before a court, commission, board, agency, or other tribunal, authority 
or entity, foreign or domestic. Legal proceeding also includes any 
deposition or other pretrial proceeding, including a formal or informal 
request for testimony by an attorney or any other person.
    (e) Record has the same meaning as ``record'' in 20 CFR 402.30.
    (f) Request means any attempt to obtain the production, disclosure, 
or release of information, records, or the testimony of an SSA 
employee, including any order, subpoena, or other command issued in a 
legal proceeding as well as any informal or other attempt (by any 
method) by a party or a party's representative.
    (g) SSA means the Social Security Administration.
    (h) Testimony includes any sworn statement (oral or written), 
including (but not limited to)--
    (1) Any statement provided through personal appearance; deposition; 
or recorded interview; or provided by telephone, television, or 
videotape;
    (2) Any response during discovery or other similar proceedings that 
would involve more than the mere physical production of records; and
    (3) Any declaration made under penalty of perjury or any affidavit.
    (i) We or our means the Social Security Administration.
    (j) You or your means an individual or entity that submits a 
request for records, information or testimony.


Sec. 403.115  When does this part apply?

    (a) Except as specified in paragraph (b) of this section, this part 
applies to any request in connection with any legal proceeding for SSA 
records or other information or for testimony from SSA or its 
employees. This part applies to requests for testimony related to SSA's 
functions or to any information or record created or acquired by SSA as 
a result of the discharge of its official duties.
    (b) This part does not apply to requests for testimony--
    (1) In an SSA administrative proceeding;
    (2) In a legal proceeding to which SSA is a party (``SSA'' here 
includes the Commissioner and any employee acting in his or her 
official capacity);
    (3) From the United States Department of Justice;
    (4) In a criminal proceeding in which the United States is a party;
    (5) In 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;
    (6) From either house of Congress;
    (7) In a law enforcement proceeding related to threats or acts 
against SSA, its employees, or its operations (``SSA'' here includes 
the Commissioner and any employee acting in his or her official 
capacity); or
    (8) Where Federal law or regulations expressly require a Federal 
employee to provide testimony.


Sec. 403.120  How do you request testimony?

    (a) You must submit a written application for testimony of an SSA 
employee. Your application must-
    (1) Describe in detail the nature and relevance of the testimony 
sought in the legal proceeding;
    (2) Include a detailed explanation as to why you need the 
testimony, why you cannot obtain the information you need from an 
alternative source, and why providing it to you would be in SSA's 
interest; and
    (3) Provide the date and time that you need the testimony and the 
place where SSA would present it.
    (b) You must submit a complete application to SSA at least 30 days 
in advance of the date that you need the testimony. If your application 
is submitted fewer than 30 days before that date, you must provide, in 
addition to the requirements set out above, a detailed explanation as 
to why--
    (1) You did not apply in a timely fashion; and
    (2) It is in SSA's interest to review the untimely application.
    (c) You must send your application for testimony to: Office of the 
General Counsel, Social Security Administration, Post Office Box 17706, 
Baltimore, MD 21235-7760, Attn: Touhy Officer. (If you are requesting 
testimony of an employee of the Office of the Inspector General, send 
your application to the address in Sec. 403.125.)
    (d) The Commissioner has the sole discretion to waive any 
requirement in this section.
    (e) If your application does not include each of the items required 
by paragraph (a) of this section, we may return it to you for 
additional information. Unless the Commissioner waives one or more 
requirements, we will not process an incomplete or untimely 
application.


Sec. 403.125  How will we handle requests for records, information, or 
testimony involving SSA's Office of the Inspector General?

    A request for records or information of the Office of the Inspector 
General or the testimony of an employee of the Office of the Inspector 
General will be handled in accordance with the provisions of this part, 
except that the Inspector General or the Inspector General's designee 
will make those determinations that the Commissioner otherwise would 
make. Send your request for records or information pertaining to the 
Office of the Inspector General or your application for testimony of an 
employee of the Office of the Inspector General to: Office of the 
Inspector General, Social Security Administration, 300 Altmeyer 
Building, 6401 Security Blvd., Baltimore, MD 21235-6401.


Sec. 403.130  What factors may the Commissioner consider in determining 
whether SSA will grant your application for testimony?

    In deciding whether to authorize the testimony of an SSA employee, 
the Commissioner will consider applicable law and factors relating to 
your need and the burden to SSA. The considerations include, but are 
not limited to, the following:
    (a) Risk of law violation or compromise of Government privilege.
    (1) Would providing the testimony violate a statute (such as 26 
U.S.C. 6103 or section 1106 of the Social Security

[[Page 2811]]

Act, 42 U.S.C. 1306), Executive Order, or regulation (such as 20 CFR 
part 401)?
    (2) Would providing the testimony put confidential, sensitive, or 
privileged information at risk?
    (b) Burden on SSA. (1) Would granting the application unduly expend 
for private purposes the resources of the United States (including the 
time of SSA employees needed for official duties)?
    (2) Would the testimony be available in a less burdensome form or 
from another source?
    (3) Would the testimony be limited to the purpose of the request?
    (4) Did you previously request the same testimony in the same or a 
related proceeding?
    (c) Interests served by allowing testimony. (1) Would providing the 
testimony serve SSA's interest?
    (2) Would providing the testimony maintain SSA's policy of 
impartiality among private litigants?
    (3) Is another government agency involved in the proceeding?
    (4) Do you need the testimony to prevent fraud or similar 
misconduct?
    (5) Would providing the testimony be necessary to prevent a 
miscarriage of justice or to preserve the rights of an accused 
individual to due process in a criminal proceeding?


Sec. 403.135  What happens to your application for testimony?

    (a) If 20 CFR part 401 or 402 does not permit disclosure of 
information about which you seek testimony from an SSA employee, we 
will notify you under Sec. 403.145.
    (b) If 20 CFR part 401 or 402 permits disclosure of the information 
about which you seek testimony,
    (1) The Commissioner makes the final decision on your application;
    (2) All final decisions are in the sole discretion of the 
Commissioner; and
    (3) We will notify you of the final decision on your application.


Sec. 403.140  If the Commissioner authorizes testimony, what will be 
the scope and form of that testimony?

    The employee's testimony must be limited to matters that were 
specifically approved. We will provide testimony in the form that is 
least burdensome to SSA unless you provide sufficient information in 
your application for SSA to justify a different form. For example, we 
will provide an affidavit or declaration rather than a deposition and a 
deposition rather than trial testimony.


Sec. 403.145  What will SSA do if you have not satisfied the conditions 
in this part or in 20 CFR part 401 or 402?

    (a) We will provide the following information, as appropriate, to 
you or the court or other tribunal conducting the legal proceeding if 
your request states that a response is due on a particular date and the 
conditions prescribed in this part, or the conditions for disclosure in 
20 CFR part 401 or 402, are not satisfied or we anticipate that they 
will not be satisfied by that date:
    (1) A statement that compliance with the request is not authorized 
under 20 CFR part 401 or 402, or is prohibited without the 
Commissioner's approval;
    (2) The requirements for obtaining the approval of the Commissioner 
for testimony or for obtaining information, records, or testimony under 
20 CFR part 401 or 402; and
    (3) If the request complies with Sec. 403.120, the estimated time 
necessary for a decision. We will make every reasonable effort to 
provide this information in writing on or before the date specified in 
your request.
    (b) Generally, if a response to a request for information, records, 
or testimony is due before the conditions of this Part or the 
conditions for disclosure in 20 CFR part 401 or 402 are met, no SSA 
employee will appear.
    (c) SSA will seek the advice and assistance of the Department of 
Justice when appropriate.


Sec. 403.150  Is there a fee for our services?

    (a) General. Unless the Commissioner grants a waiver, you must pay 
fees for our services in providing information, records, or testimony. 
You must pay the fees as prescribed by the Commissioner. In addition, 
the Commissioner may require that you pay the fees in advance as a 
condition of providing the information, records, or testimony. Make 
fees payable to the Social Security Administration by check or money 
order.
    (b) Records or information. Unless the Commissioner grants a 
waiver, you must pay the fees for production of records or information 
prescribed in 20 CFR Sec. Sec. 401.95 and 402.155 through 402.185, as 
appropriate.
    (c) Testimony. Unless the Commissioner grants a waiver, you must 
pay fees calculated to reimburse the United States Government for the 
full cost of providing the testimony. Those costs include, but are not 
limited to--
    (1) The salary or wages of the witness and related costs for the 
time necessary to prepare for and provide the testimony and any travel 
time, and
    (2) Other travel costs.
    (d) Waiver or reduction of fees. The Commissioner may waive or 
reduce fees for providing information, records, or testimony under this 
Part. The rules in 20 CFR Sec. 402.185 apply in determining whether to 
waive fees for the production of records. In deciding whether to waive 
or reduce fees for testimony or for production of information that does 
not constitute a record, the Commissioner may consider other factors, 
including but not limited to--
    (1) The ability of the party responsible for the application to pay 
the full amount of the chargeable fees;
    (2) The public interest, as described in 20 CFR Sec. 402.185, 
affected by complying with the application;
    (3) The need for the testimony or information in order to prevent a 
miscarriage of justice;
    (4) The extent to which providing the testimony or information 
serves SSA's interest; and
    (5) The burden on SSA's resources required to provide the 
information or testimony.


Sec. 403.155  Does SSA certify records?

    We can certify the authenticity of copies of records we disclose 
pursuant to 20 CFR parts 401 and 402, and this part. We will provide 
this service only in response to your written request. If we certify, 
we will do so at the time of the disclosure and will not certify copies 
of records that have left our custody. A request for certified copies 
of records previously released is considered a new request for records. 
Fees for this certification are set forth in 20 CFR 402.165(e).

[FR Doc. 01-838 Filed 1-11-01; 8:45 am]
BILLING CODE 4191-02-U