PART 402—AVAILABILITY OF INFORMATION AND RECORDS TO THE PUBLIC 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. Source: 89 FR 102711, Dec. 18, 2024, unless otherwise noted. § 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. § 402.10 Definitions. As used in this part: Agency Chief FOIA Officer Commercial interest e.g., Commercial use Component Duplication Educational institution Exemption Expedited processing Fee category Fee waiver FOIA Library www.ssa.gov, www.ssa.gov/foia. FOIA Officer FOIA Public Liaison [email protected]. FOIA request Freedom of Information Act FOIA Non-commercial scientific institution Numident OGC Online FOIA portal OPD Other requester Production i.e., Record(s) (1) Record(s) does not include personal records of an employee, or other information in formally organized and officially designated SSA libraries and FOIA library, 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 Representative of the news media Request Review, i.e., Search Special services SS-5 SSA Submitter Tolling Trade secrets and confidential commercial or financial information § 402.15 SSA's FOIA policy. (a) Presumption of openness. (b) Authority to release and withhold records. (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. (d) Required record production. § 402.20 Relationship between the FOIA and the Privacy Act of 1974. (a) Coverage. (b) Requesting your own records. § 402.25 Who can file a FOIA request? Any person may submit a FOIA request to SSA. Under the FOIA, “any person” 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. § 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 § 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 in sufficient detail to enable OPD to locate them with a reasonable amount of effort. Broad, sweeping requests and vague requests are not reasonably described. 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 may 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 in paragraph (a) of this section are not considered proper FOIA requests. § 402.35 Where to submit a FOIA request. (a) Submission of requests. (1) Online FOIA portal: www.ssa.gov/foia www.FOIA.gov. (2) Email: [email protected]. (3) Mail: (b) Requests for copies of Deceased Individual's Application for a Social Security Card (SS-5) or Numident record. Request for a Deceased Individual's Social Security Record, § 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 § 402.20(b), requests for information about a living person. § 402.45 Requests handled outside of the FOIA process. When records outlined in paragraphs (a) through (d) of this section are requested from OPD, OPD will respond to the requester and provide information for requesting the records sought: (a) To the extent a request asks for records that are currently publicly available, either from SSA or from another part of the Federal Government. See § 402.155. (b) If the records sought are distributed by SSA as part of its regular program activity, for example, public information leaflets distributed by SSA. See §§ 402.155 through 402.165. (c) If the records sought are earnings records covered by § 422.125 of this chapter. (d) If a request does not meet the requirements of a FOIA request as defined in § 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. § 402.50 FOIA Officer's authority. (a) Release determination. (1) Release or withholding of records; (2) Expedited processing; (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. § 402.55 Referrals and consultations. (a) Consultation and referral. (1) Referral of FOIA records in whole or in part to an outside agency. (2) Agency consultation. (b) Consultation with another agency or entity. § 402.60 How does SSA process FOIA requests? (a) Acknowledgement. (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. i.e., (c) Multi-tracking procedures. (1) Simple. (2) Complex. (3) Expedited processing. (d) Unusual circumstances. (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; 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 notify the requester of the date by which we estimate completing the request. We will also advise the requester that they may modify or narrow the scope of their request. (3) When unusual circumstances exist, we will process the request under the complex track. (e) Aggregating requests. (f) Fee notice. (g) Tolling. (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. 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. (h) Retrieving records. (i) No records determinations. (j) Furnishing records. (k) Directing a requester to another agency. (l) Burdensome requests. § 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: (1) When there is an imminent threat to the life or safety of a person; (2) When the requester is primarily engaged in disseminating information, and shows an 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) A requester who seeks expedited processing must submit a statement, certified to be true and correct, explaining in detail the basis for making the request for expedited processing. We will notify the requester within 10 calendar days of receipt of the request for expedited processing of our decision to grant or deny expedited processing. Only the FOIA Officer may make the decision to grant or deny expedited processing. Requests granted expedited processing will be given priority and processed as soon as practicable. 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 § 402.105 will also apply to these appeals. § 402.70 Fees associated with processing FOIA requests. (a) Charging authorities Section 1106(c). (2) FOIA fee categories. i.e., (b) Hourly rate when charging under section 1106(c) and the FOIA fee categories. (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. § 402.75 FOIA fee schedule. (a) Fee schedule category. (1) Commercial. (2) Non-commercial educational or scientific institutions and representative of the news media. (3) Other. (b) Certification. (c) Record(s) production and duplication Electronic records. (2) Photocopying standard size pages. (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. (3) Photocopying odd-size documents. (d) Cost of service less than cost of issuing a bill. (e) Fee waiver. § 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. (1) Search. (2) Review. (3) Production and duplication of record(s). e.g., (4) Certification. (5) Employee's time. (6) Forwarding/delivering materials. e.g., (7) Performing other special services. (b) Cost of service less than cost of issuing a bill. (c) Standard administrative fees for non-program information. (d) Non-program purpose. (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. § 402.85 Waiver of fees in the public interest. A requester may request waiver or reduction of fees, whether charged under § 402.75 or § 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. (2) Public interest. (i) How the records pertain to the Federal Government's operations or activities; (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 of those operations or activities would be significant. (iv) Regarding the above criteria, you must be reasonably specific in your waiver request as to the specific Government operation or activity and provide direct, clear (not remote or attenuated) connections to the meaningful information you seek. Generalized interest in government programs is not reasonably specific to grant waiver. (3) Not primarily in 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). (5) Deciding between waiver and reduction. § 402.90 Notification of fees and prepayment requirements. Requesters must agree to pay the fee, whether charged under § 402.75 or § 402.80, before we will begin the search for record(s). (a) Cost estimate. (b) Advanced payment information required. i.e., (c) Changes in estimated fee. (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 either dispose of the payment information or 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 § 402.105. (d) Prompt payment. (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 § 402.105. (e) Methods of payment. § 402.95 Release of records. (a) Records previously released. (b) Withholding records. (c) FOIA library. www.ssa.gov, (d) Poor copy. § 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 § 402.50(a), and responses to appeals. (a) FOIA Public Liaison. [email protected]. (b) OGIS. § 402.105 Appeals of the FOIA Officer's determination. (a) Appeal requirements. (1) Be submitted in writing via the avenues identified in § 402.35(a); (2) Be received, or in the case of electronic submissions, transmitted within 90 calendar days from the date of the determination the requester is appealing; and (3) Explain what the requester is appealing and include additional information to support the appeal. The appeal should clearly identify the agency determination that is being appealed and the assigned request's tracking number. To facilitate handling when submitted via mail or fax, the requester should mark the appeal letter, or subject line of the electronic transmission, “Freedom of Information Act Appeal.” (b) Acknowledgement. (c) Processing timeframe. (1) Simple. (2) Complex. (d) Final decision. (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. § 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 § 402.50(a), requesters may ask a U.S. District Court to review that denial. See 5 U.S.C. 552(a)(4)(B). § 402.115 The FOIA Exemption 1: National defense and foreign policy. Exemption 1 protects from disclosure information 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. § 402.120 The FOIA Exemption 2: Internal personnel rules and practices. Exemption 2 authorizes our agency to withhold 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. § 402.125 The FOIA Exemption 3: Records exempted by other statutes. (a) Required record release. (b) Examples. (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. § 402.130 The FOIA Exemption 4: Trade secrets and confidential commercial or financial information. Submitters may 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 The submitter's notice. (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. (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. (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 working days from the date on the Release Over Objection letter unless the submitter files an action in a U.S. District Court to prevent the release. (b) Notice of FOIA lawsuit. (c) Requester notification. § 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 may 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. (b) Attorney work product privilege. (c) Attorney-client communication privilege. § 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. (b) Agency employees. (c) Examples. § 402.145 The FOIA Exemption 7: Law enforcement. Exemption 7 authorizes our agency to withhold certain 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. (b) Fair trial or impartial adjudication. (c) Personal privacy. (d) Confidential sources and information. (e) Techniques and procedures. (f) Life and physical safety. § 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. § 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 SSA makes available for public inspection in an electronic format may be accessed through www.ssa.gov (1) Compilation of Social Security Laws and Regulations; (2) SSA regulations under the retirement, survivors, disability, and supplemental security income programs, i.e., (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) SSA's Public Hearings, Appeals, and Litigation Law Manual. § 402.160 Where records are published. (a) Methods of publication. (1) By publication in the Federal Register (2) By publication in the Federal Register (3) By other forms of publication, when incorporated by reference in the Code of Federal Regulations with the approval of the Director of the Federal Register; (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 ; (5) By posting in the FOIA library. (b) Publication of rulings. Federal Register (1) We publish Social Security Rulings in the Federal Register (2) We publish Social Security Acquiescence Rulings in the Federal Register § 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 (c) Compilation of the Social Security Laws.