[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.
------------------------------------------------------------------------

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">FOIA.Public.Liaison@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">FOIA.Public.Liaison@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">FOIA.Public.Liaison@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