Rule2024-29647
Availability of Information and Records to the Public
Primary source
Metadata and text below are from the Federal Register, a public-domain U.S. government work. Always verify the official published version before relying on it for any legal matter.
Published
December 18, 2024
Effective
January 17, 2025
Issuing agencies
Social Security Administration
Abstract
The Social Security Administration (SSA) is finalizing revisions to our 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 finalizing the reorganization of our FOIA regulation to make our FOIA procedures easier for the public to understand and use.
Full Text
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<title>Federal Register, Volume 89 Issue 243 (Wednesday, December 18, 2024)</title>
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[Federal Register Volume 89, Number 243 (Wednesday, December 18, 2024)]
[Rules and Regulations]
[Pages 102704-102721]
From the Federal Register Online via the Government Publishing Office [<a href="http://www.gpo.gov">www.gpo.gov</a>]
[FR Doc No: 2024-29647]
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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: Final rule.
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SUMMARY: The Social Security Administration (SSA) is finalizing
revisions to our 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 finalizing the
reorganization of our FOIA regulation to make our FOIA procedures
easier for the public to understand and use.
DATES: This rule is effective January 17, 2025.
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 <a href="https://www.ssa.gov">https://www.ssa.gov</a>.
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. 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 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. We are finalizing our proposed 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; <a href="https://www.congress.gov/bill/110th-congress/senate-bill/2488/text">https://www.congress.gov/bill/110th-congress/senate-bill/2488/text</a>.
\2\ Public Law 114-185; <a href="https://www.congress.gov/bill/114th-congress/senate-bill/337/text">https://www.congress.gov/bill/114th-congress/senate-bill/337/text</a>.
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On June 6, 2023, we published a notice of proposed rulemaking
(NPRM) to update, reorganize, and clarify our FOIA processes for the
public.\3\ In the NPRM, we proposed comprehensive revisions to the
entirety of 20 CFR part 402. 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,
finalized here with some modifications from the NPRM, 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 proposed
updates to reflect office name changes, as well as general text changes
consistent with the plain language initiative.\4\
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\3\ 88 FR 36980.
\4\ 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;
<a href="https://centerforplainlanguage.org/learning-training/five-steps-plain-language/">https://centerforplainlanguage.org/learning-training/five-steps-plain-language/</a>. 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,
which we are finalizing with minor revisions, are supported by the
requirements of the OPEN Government Act of 2007 and the FOIA
Improvement Act of 2016.
These changes also correlate with 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 NPRM, and in this final rule, we explained and justified the
rulemaking on the requirements of the
[[Page 102705]]
OPEN Government Act of 2007 \5\ and the FOIA Improvement Act of
2016.\6\
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\5\ 88 FR at 36981.
\6\ 88 FR at 36982.
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The changes we are finalizing in this final rule to conform with
the requirements of the OPEN Government Act of 2007 are as follows:
<bullet> 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;
<bullet> Within revised Sec. Sec. 402.70 through 402.80, we are
clarifying our rules concerning fees;
<bullet> Within revised Sec. Sec. 402.05 and 402.100, we are
introducing and providing information on the services of the FOIA
Public Liaison and the Office of Government Information Services
(OGIS); and
<bullet> 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).
The changes we are finalizing in this final rule to conform with
the requirements of the FOIA Improvement Act of 2016 are as follows:
<bullet> Within revised Sec. Sec. 402.15(a) and 402.60(k), we are
adding the foreseeable harm standard;
<bullet> Within revised Sec. 402.105, we are updating the appeal
timeframe to 90 days (from 30 days);
<bullet> Within revised Sec. Sec. 402.05 and 402.100, discussed
earlier, we are addressing the FOIA Public Liaison and OGIS;
<bullet> Within revised Sec. Sec. 402.70 through 402.80, we are
clarifying our fee charging rules, including when unusual circumstances
apply;
<bullet> 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,
<bullet> Within revised Sec. 402.155(a), we are addressing our
public posting of records requested three or more times.
Changes We Made From the NPRM to the Final Rule
<bullet> In Sec. 402.10, we clarified the definition of
``commercial interest'' in response to public comment.
<bullet> In Sec. 402.10, we added the definition of ``commercial
use'' to differentiate ``Commercial interest'' from ``commercial use.''
``Commercial use'' is terminology used in our fee waiver provisions and
is not intended to impact the ``commercial use'' FOIA fee category.
<bullet> In Sec. 402.10, we clarified the definition of
``educational institution.'' While we did not receive public comment on
this definition, the language we added aligns with DOJ FOIA guidance
and case law. The added language specifies that we may seek
verification from the requester that the request is in furtherance of
scholarly research.
<bullet> In Sec. 402.10, we clarified the definition of ``fee
category.'' While we did not receive public comment on this definition,
we removed ``noncommercial'' so the language now states: ``The
categories are: commercial use requests; scientific or educational
institutions and news media requests; and all other requests.''
``Commercial use'' is its own fee category; therefore, the term
``noncommercial'' is redundant.
<bullet> In Sec. 402.10, we changed the term ``reading room'' to
``FOIA library'' to align with DOJ FOIA guidance. We also added the
following sentence to further explain what may be maintained in a FOIA
library: ``Posted records may include those provided under agency
discretion and not required pursuant to FOIA.'' We changed the term
``reading room'' to ``FOIA library'' throughout the regulation.
<bullet> In Sec. 402.10, we modified the definition of
``representative of the news media.'' While we did not receive public
comment on this definition, we removed the phrase ``based on the
requester's intended use of the requested records'' to align with the
FOIA statute.
<bullet> In Sec. 402.10, we clarified the definition of ``Trade
secrets and commercial or financial information.'' While we did not
receive public comment on this definition, we adjusted the terminology
of the definition to make it easier to understand. The term now reads:
``Trade secrets and confidential commercial or financial information.''
<bullet> In Sec. 402.20(b), we changed the language from stating
the agency ``will handle'' your request under the Privacy Act to the
agency ``may handle'' your request under the Privacy Act. This change
clarifies that not all individuals requesting their own records that
are maintained in a system of records, or parents or legal guardians
authorized to act under Sec. 401.75 of this chapter who are seeking
the records about a minor or individual who has been declared
incompetent, would be entitled to access records under the Privacy Act.
For instance, SSA maintains systems of records that are exempt from
access under Sec. 401.85 and third-party information within a
subject's systems of records may not be accessible under the Privacy
Act. Further, requesters must verify their identity to make a Privacy
Act request. In cases where a requester who filed a FOIA would not be
entitled to records under the Privacy Act, we will handle their request
under FOIA. We further clarified that ``Privacy Act requests are also
processed under the FOIA, when appropriate, to give you the benefit of
both statutes. You must verify your identity in accordance with our
regulations.'' Given our central processing of FOIA, it is not feasible
for Privacy Act initial denials to be processed under FOIA prior to
denial of administrative appeal because OPD, the sole decisionmaker
under FOIA, does not process initial denials but does process
administrative appeal denials.
<bullet> In Sec. 402.25, we modified the language to align more
with the FOIA statute by changing ``member of the public'' to
``person.''
<bullet> In Sec. 402.30(a)(4), we consolidated two separate
sentences into one for clarity and readability. The sentence now reads:
``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.'' We also changed the
word ``should'' to ``may'' in the following sentence to clarify that
providing the information specified therein is not a requirement: ``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.''
<bullet> In Sec. 402.35, we added the National FOIA Portal as an
additional resource through which requesters can submit FOIA requests
to SSA, and we removed the agency's fax number. This section, however,
continues to provide requesters codified directions to our website at
<a href="https://www.ssa.gov/foia">https://www.ssa.gov/foia</a> for additional contact information, as well as
an email address for inquiries and a physical mailing address.
<bullet> In Sec. 402.45, we changed the name of the section
heading and revised the content to more clearly describe how we handle
certain requests. The ``Requests not processed under the FOIA'' is now
Requests handled outside of the FOIA process. We added a clarifying
sentence, ``When records (a) through (d) below are requested from OPD,
OPD will respond to the requester and provide information for
requesting the records sought,'' to
[[Page 102706]]
articulate how we respond outside of the FOIA process.
<bullet> In Sec. 402.55, we edited the language to further clarify
how we handle consultations and referrals, e.g., we added language to
explain referrals of requests in whole or in part. Our practices as
described in this section align with DOJ's FOIA guidance and how other
agencies similarly handle consults and referrals. While we did not
receive public comment on this section, we clarified the language in
Sec. 402.55(a) to state that ``[w]hen reviewing records located by SSA
in response to a request, SSA will determine whether another agency of
the Federal Government is better able to determine whether the record
is exempt from disclosure under the FOIA.'' We further clarify that we
may refer records, in whole or in part to an outside agency. Within
modified Sec. 402.55(a)(1), finalized in this rule, we now state: ``We
will notify the requester in writing when we opt to refer records in
whole or in part to another agency for direct response from that
agency, including the name(s) or the agency(s) to which the record was
referred and that agency's FOIA contact information, unless
notification would cause harm to an interest protected under the FOIA.
In such instances, in order to avoid harm to an interest protected by
an applicable exemption, we coordinate to seek the view of the
originating agency.''
<bullet> We moved Sec. 402.55(b) Referral of requester to another
agency, to Sec. 402.60(k) and edited the language to more clearly
describe SSA's actions. The sub-heading now reads: Directing a
requester to another agency. This subsection describes our practices
that are not technically referrals as defined in the FOIA statute. This
move provides more clarity on our FOIA process.
<bullet> In Sec. 402.60(a)(1), we revised the first sentence
concerning our acknowledgement of FOIA requests for consistency with
the FOIA statute. The language now reads: ``If we receive a FOIA
request that will take longer than 10 working days to process, we will
provide an acknowledgment.''
<bullet> In Sec. 402.60(b) and elsewhere throughout the
regulation, we changed the term ``business days'' to ``working days''
for consistency with the FOIA statute.
<bullet> In Sec. 402.60, we reorganized Expedited processing
within 402.60(c) Multi-tracking procedures. Section 402.60(c),
clarifies that there are three multi-track types: ``FOIA requests are
categorized simple, complex, or expedited. Unless granted expedited
processing, we process FOIA requests in each track according to a
first-in, first-out basis.'' We further clarify in Sec. 402.60(c)(2)
how long it takes the agency to process requests placed in the complex
multi-track: ``We will place into a complex processing queue any
request that cannot be completed within 20 working days due to the
complex nature of the request, including consultation with components
that may maintain records subject to the request.''
<bullet> In Sec. 402.60(d), we clarify that ``[w]hen unusual
circumstances exist, we will process the request under the complex
track.'' We received a public comment concerning SSA's ``unusual
circumstances'' practice. As explained within the ``Comments and
Responses'' portion of this final rule, we modified our final
regulation to reflect that ``unusual circumstances'' exist ``[w]hen
unusual circumstances exist, we will process the request under the
complex track.'' This change is a clarifying statement but not a change
in practice. We currently use multi-tracks under Sec. 402.140(c) and
similarly define longer tracks to include situations where there is a
need to consult with other SSA offices and the FOIA defines unusual
circumstances under 5 U.S.C. 552(a)(6)(B)(iii) to exist when there is a
need to search for and collect the requested records from offices
separate from the office processing the FOIA request. Thus, the change
to Sec. 402.60(d) is merely a clarifying statement of how our tracks
align with the unusual circumstance requirements in FOIA.
<bullet> In Sec. 402.60(d)(2), we added language about our
``unusual circumstances'' notification for consistency with the FOIA
statute. We added the following sentence: ``We will notify the
requester of the date by which we estimate completing the request.''
<bullet> In Sec. 402.60(f), we clarified our fees by adding
``duplication'' among the items subject to a fee. The language now
reads: ``FOIA requesters are issued a fee notice that informs them of
the estimated search, review, and duplication time associated with
processing their FOIA request.''
<bullet> In Sec. 402.60(g)(2), we clarified language regarding our
administrative closing of requests. The language now reads: ``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.''
<bullet> In 402.60(i), we renamed the title of the subsection to
reflect the content more clearly. The subsection's title changed from
``Unproductive searches'' to No records determinations.
<bullet> In Sec. 402.60(j), we removed the word ``only'' from the
first sentence, so it now reads as follows: ``We will furnish copies 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.''
<bullet> In Sec. 402.65, we modified (a), (a)(2), and (b). Under
Sec. 402.65(a), we removed the phrase ``such as'' before we list the
criteria for expedited processing. For Sec. 402.65(a)(2), for clarity
and plain language usage, we changed the language from ``the request is
from the media, or other'' to ``the requester is.'' In response to
public comment, we also removed the word ``immediate'' in describing
the urgency to inform the public necessary for expedited processing.
Under Sec. 402.65(b), we added language to clarify and more closely
align with the FOIA statute \7\ to reflect the requester's requirements
when submitting a request for expedited processing. Our regulation now
clearly states what information the requester must provide when
submitting a request for expedited processing, i.e., ``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.'' We added one more
sentence, clarifying our processing of requests for expedited
processing: ``Requests granted expedited processing will be given
priority and processed as soon as practicable.''
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\7\ 5 U.S.C. 552(a)(6)(E)(vi).
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<bullet> In Sec. 402.85, in response to public comment, we
modified the language by further clarifying the public interest
criteria and what a requester should provide when submitting a request
for a fee waiver citing public interest. We expand on this change
within the ``Comments and Responses'' portion of this final rule.
<bullet> In Sec. 402.90(c)(3), to align more with the electronic
age and requesters' use of credit card payment forms, we added language
clarifying that we will dispose of payment information or return it.
For example, if a requester faxed us their credit card payment
information and the credit card payment information is no longer
needed, rather than returning the completed credit card payment form
via postal mail, we may dispose of the payment information.
[[Page 102707]]
<bullet> In Sec. 402.105(a)(2) and (a)(3), we added language
further clarifying the timeframe to submit an appeal and what
information a requester should provide when submitting an appeal. While
we did not receive public comment on this section, we added the phrase
``or in the case of electronic submissions, transmitted'' and the word
``calendar'' to Sec. 402.105(a)(2), so it now reads: ``Be received, or
in the case of electronic submissions, transmitted within 90 calendar
days from the date of the determination the requester is appealing.''
Under Sec. 402.105(a)(3), we expand on what the appeal should include
by adding two more sentences, so it now reads: ``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.' ''
<bullet> In Sec. 402.105(b), we revised the first sentence
concerning our acknowledgement of FOIA appeals for consistency with the
FOIA statute. The language now reads: ``If we receive an appeal that
will take longer than 10 working days to process, we will provide an
acknowledgment.''
<bullet> In Sec. 402.105(c)(2), we clarify how long it takes the
agency to process appeals placed in the complex multi-track: ``Appeals
of complex requests cannot be completed within 20 working days.''
<bullet> In Sec. 402.115 through Sec. 402.145, we revised some of
the introductions within the FOIA Exemptions to account that there may
be considerations beyond the Exemption itself.
<bullet> In Sec. 402.130, we clarified Exemption 4 regarding the
Submitter's Notice to make clear how we may handle transmission of
submitter notices in cases involving many submitters. We also clarified
some of the language to make it consistent throughout the regulation.
<bullet> In Sec. 402.135, Exemption 5, we added ``may'' to the
following sentence to clarify that these records are examples: ``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.''
<bullet> In Sec. 402.145(e), we modified the language to mirror
the FOIA statute concerning Exemption 7(E).
<bullet> In Sec. 402.155, we added the phrase, ``SSA's public'' in
front of ``Hearings, Appeals, and Litigation Law Manual.'' We received
public comment regarding the agency's proactive disclosures; therefore,
our addition of the phrase ``SSA's public'' clarifies that the agency
posts a public version of the Hearings, Appeals, and Litigation Law
Manual.
<bullet> In Sec. 402.160(a), we added ``(a)(5) By posting in the
FOIA Library,'' to the list of places where the agency publishes
records.
To visualize our reorganization of part 402, we provided a table
that identifies the old (existing) regulatory sections, the sections to
which the content moved, and the names of the new sections, which we
are also including for ease-of-use and transparency in this final
rule.\8\
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\8\ 88 FR at 36983.
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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
records. 402.05. handled outside of
the FOIA process.
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.
[[Page 102708]]
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.
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.
------------------------------------------------------------------------
Comments Summary
We received five public comments on our NPRM from June 6 through
August 7, 2023. All the comments are available for public viewing at
<a href="https://www.regulations.gov/document/SSA-2021-0049-0001">https://www.regulations.gov/document/SSA-2021-0049-0001</a>. These comments
were from:
<bullet> Two individuals; and
<bullet> Three advocacy groups, Public Citizen, Community Legal
Services of Philadelphia, and Justice in Aging.
We carefully considered the public comments we received. Comments
from individuals and advocacy provided a mix of support for the
revisions and reorganization as well as recommended revisions.
We received some comments that were outside the scope of this
rulemaking because they did not relate to our proposals. Even though
outside the scope, we address some of these other comments where they
related to the FOIA more generally because a response might help the
public understand our program better.
The next section summarizes and responds to the public comments.
Comments and Responses
Comment: Two commenters requested that we ensure the application of
the fee waiver provision is consistent with the FOIA statute within the
introductory language of 20 CFR 402.85. The commenters urged us to
ensure that our application of the new fee waiver regulation is ``more
consistent with the FOIA statute.'' The commenters explained that we
deny fee waiver requests made in the public interest.
Response: We understand the commenters' concern; however, we
consistently follow the statutory and our regulatory requirements to
disclose records at no fee or a reduced fee. Because SSA charges fees
when the request is not directly related to the administration of the
Social Security Act based on our authority in section 1106(c) of the
Social Security Act, which applies notwithstanding the FOIA provisions
in 5 U.S.C. 552 and 552a, the FOIA statutory fee provisions would not
apply.\9\ When a public interest fee waiver is sought, we will approve
waiver when the criteria in our regulation at 20 CFR 402.85 (formerly
20 CFR 402.185) have been met; this aspect of our fee charging and
waiver procedures has not changed in this final
[[Page 102709]]
rule from our current regulations. In seeking waiver requests, the
requester should explain with reasonable specificity why their request
meets the ``public interest'' criteria for a fee waiver under 20 CFR
402.85. Our regulation at Sec. 402.85, explains the factors we
consider when determining whether a request meets the ``public
interest'' criteria necessary to reduce or waive the fee. The
modifications we made to this section of our final regulation further
clarify what a requester should provide when submitting a request for a
fee waiver citing public interest. Under Sec. 402.85(b)(1), we added
the phrase ``in writing'' to the following sentence: ``A requester must
make the request for a fee waiver or reduction in writing at the same
time they make their request for records.'' In describing the public
interest criteria under Sec. 402.85(b)(2), we modified Sec.
402.85(b)(2)(iii) and added Sec. 402.85(b)(2)(iv). Within Sec.
402.85(b)(2)(iii), we added the phrase ``of those operations or
activities'' so the sentence now reads: ``Whether the contribution to
public understanding of those operations or activities would be
significant.'' Newly added Sec. 402.85(b)(2)(iv) further clarifies
that specificity is necessary when requesting a fee waiver in the
public interest, i.e.: the requester ``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.''
---------------------------------------------------------------------------
\9\ See 42 U.S.C. 1306(c).
---------------------------------------------------------------------------
Comment: Several commenters requested that we change our proposed
definition of ``commercial interest'' in 20 CFR 402.10. They asserted
that our proposed definition of ``commercial interest'' suggests that
interests related to non-profit corporations, such as the work
performed by claimant advocacy entities, are commercial. These
commenters suggested that our proposed definition does not accurately
reflect the standard for a finding of a noncommercial use in the FOIA
statute.
Response: We disagree that our proposed definition, finalized here,
is inconsistent with the FOIA statute. Similar to our response
regarding ``public interest'' above, commercial interests could be
present regardless of the identity of the requester (individual, non-
profit corporation, for-profit corporation). In response to the
comment, we revised the definition of ``commercial interest'' to
clarify that the interests could exist regardless of the requester's
identity. We also added the definition of ``commercial use'' to address
the FOIA fee category.
Comment: Several commenters agreed with our proposed revisions to
20 CFR 402.155 to provide responsive FOIA records in electronic format,
particularly those documents related to statements of policy and
interpretation, consistent with 5 U.S.C. 552(a)(2)(B). The commenters
further advocated that our Program Operations Manual System (POMS) be
proactively disclosed in its entirety and indexed, as well as all
Emergency Messages (EM) and Administrative Messages (AM).
Response: POMS and EMs are not categorically subject to the
proactive disclosure requirements of the FOIA. Nonetheless, in the
interest of transparency, SSA now publishes indexes of POMS and EM
titles, which are updated quarterly, on our public-facing website.\10\
SSA has a longstanding practice of making agency non-sensitive POMS and
EMs public, even when the policies are not subject to the FOIA's
proactive disclosure requirements. Our current policy publication
process directs authoring components to flag sensitive POMS and EMs
that should be proactively disclosed under FOIA.\11\ Any such flagged
policies then undergo a FOIA review and are published with appropriate
redactions if they contain non-exempt content.
---------------------------------------------------------------------------
\10\ See link at, <a href="https://secure.ssa.gov/apps10/reference.nsf/instructiontypecode!openview&restricttocategory=INSTITLES">https://secure.ssa.gov/apps10/reference.nsf/instructiontypecode!openview&restricttocategory=INSTITLES</a>.
\11\ See instructions at, <a href="https://secure.ssa.gov/apps10/reference.nsf/links/12202023010304PM">https://secure.ssa.gov/apps10/reference.nsf/links/12202023010304PM</a>.
---------------------------------------------------------------------------
AMs, which are informational or staff reminders and do not contain
new instructions or policy, are also not categorially subject to
proactive disclosure requirements. Our regulations and policy
publication practices reflect these distinctions.
Comment: Commenters requested that when requesting electronic
communications, they do not need to provide identifying information
about the agency employees involved and that a request can be
reasonably described even if it seeks a large number of documents. They
requested that we revise the scope of proposed Sec. 402.30, which
described the requirements of a FOIA request, without necessarily
providing detailed information regarding the individual(s) from whom
the records are sought.
Response: SSA processes the FOIA centrally within the Office of
Privacy and Disclosure (OPD); therefore, we need the requester to
clearly state and reasonably describe what SSA records are being
requested so that we can properly determine the scope of the FOIA
request. When seeking emailed communications, we understand that
requesters may not know the name of specific employees whose records
they want to be searched; therefore, we do not require such
information. As stated in our proposed regulation, ``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.'' \12\
While we are clarifying the above examples are not required, technology
limitations may prevent the agency from conducting searches without
this information. Absent sufficient details, the agency may be unable
to search for or locate the records sought.
---------------------------------------------------------------------------
\12\ 20 CFR 402.30(a)(4).
---------------------------------------------------------------------------
Comment: One commenter requested that we modify the final rule to
specify that the agency will respond to initial requests within 20
working days, unless we provide written notice to the requester
``setting forth the unusual circumstances for [an] extension and the
date on which a determination is expected to be dispatched,'' as
articulated in the FOIA statute at 5 U.S.C. 552(a)(6)(B)(i). The
commenter acknowledged, however, that the agency may extend its
response time beyond 20 business days only if it provides written
notice to the requester. Further, the commenter stated that the
proposed rule, in contrast, makes no mention of notifying the requester
if the agency is going to take more than 20 working days to respond to
an appeal.
Response: SSA processes the FOIA centrally within the Office of
Privacy and Disclosure (OPD) and we frequently search, collect, and
consult with components outside of OPD to process complex requests and
appeals. We place requests and appeals in the complex multitrack type
because they will generally take more than 20 working days to process
due to the complex nature of the request, including consultation with
components that may maintain records subject to the request. We
modified our final regulation to reflect that ``[w]hen unusual
circumstances exist, we will process the request under the complex
track.'' This change is merely a clarifying statement of how our
complex multi-track aligns with the unusual circumstances requirements
in FOIA. ``Unusual
[[Page 102710]]
circumstances'' exist when requests or appeals require OPD to: search
for and collect records from SSA components or field locations that are
separate from OPD; search for, collect, and review a voluminous number
of records that are part of a single request; or consult with two or
more SSA components or another agency having substantial interest in
the request before releasing the records. We acknowledge the FOIA's
requirements at 5 U.S.C. 552(a)(6)(B) to provide notice to the
requester when unusual circumstances exist. Within the agency's
acknowledgement letters and emails, we advise requesters that requests
and appeals placed in a complex processing track meet unusual
circumstances.
Comment: One commenter requested that we modify the final rule by
deleting language in proposed tolling Sec. 402.60(h)(2) stating that
the agency reserves the right to administratively close a request
within 10 business days if we do not receive a response to our request
for clarification from the FOIA requester.
Response: The agency makes every reasonable effort to secure
clarification from requesters before we administratively close a
request. We contact requesters via email, phone, and or postal mail in
our attempt to gain the clarification necessary to process FOIA
requests. To avoid confusion, we clarified the language in Sec.
402.60(g)(2) by removing the 10-business day language. The language now
reads: ``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.'' Our authority,
finalized in Sec. 402.60(g)(2) is an administrative discretion that we
will use in instances where a FOIA requester never responds to our
requests for clarification. If our only course of communication with a
requester is postal mail, we understand that delays may occur, and are
mindful to allow additional time to accommodate postal mail delivery.
We cannot process requests that are not reasonably described;
therefore, when a requester does 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.
Comment: One commenter requested that we modify the proposed rule
in Sec. 402.65(a) to remove the word ``immediate'' in describing the
urgency to inform the public necessary for expedited processing. The
commenter stated that our proposed language closely aligns with the
statutory language in 5 U.S.C. 552(a)(6)(E)(v)(II) of the FOIA statute,
but the word ``immediate'' before ``urgency'' is not in the statute.
Response: We agreed with the commenters' suggestion and adopted
this change in order to more closely align with the statute.
Regulatory Procedures
Executive Order (E.O.) 12866, as Supplemented by E.O 13563
We consulted with the Office of Management and Budget (OMB) and
they determined that this rule does not meet the criteria for a
significant regulatory action under E.O. 12866, as supplemented by E.O.
13563. Therefore, OMB did not formally review 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
benefit payments and Federal Supplemental Security Income payments.
Anticipated Administrative Benefits to the Social Security
Administration
The Office of Budget, Finance, and Management estimates an
administrative effect of less than 15 work years and $2 million
annually.
Anticipated Qualitative Benefits
We anticipate qualitative benefits from the revisions to the FOIA
regulation from streamlined and clarified FOIA policies and procedures.
We expect the clarified regulations will 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 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 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.
E.O. 13132 (Federalism)
We analyzed this final rule in accordance with the principles and
criteria established by E.O. 13132 and determined that the rule will
not have sufficient federalism implications to warrant the preparation
of a federalism assessment. We also determined that this 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 this rule 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 this final rule mentions 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
[[Page 102711]]
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.
List of Subjects in 20 CFR Part 402
Administrative practice and procedure, Freedom of information.
The Acting Commissioner of Social Security, Carolyn W. Colvin,
having reviewed and approved this document, is delegating the authority
to electronically sign this document to Erik Hansen, a Federal Register
Liaison for the Social Security Administration, for purposes of
publication in the Federal Register.
Erik Hansen,
Associate Commissioner, for Legislative Development and Operations,
Social Security Administration.
0
For the reasons set forth in the preamble, the Social Security
Administration revises 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 handled outside of the FOIA process.
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.
402.125 The FOIA Exemption 3: Records exempted by other statutes.
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. These interests could be present regardless of the identity
of the requester (e.g., individual, non-profit corporation, for-profit
corporation). The interest of a representative of the news media in
using the information for news dissemination purposes will not be
considered a commercial interest.
Commercial use request is a request that asks for information for a
use or a purpose that furthers a commercial, trade, or profit interest,
which can include furthering those interests through litigation. An
agency's decision to place a requester in the commercial use category
will be made on a case-by-case basis based on the requester's intended
use of the information. Agencies will notify requesters of their
placement in this category.
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 is any school that operates a program of
scholarly research. A requester in this fee category must show that the
request is made in connection with their role at the educational
institution. To qualify for
[[Page 102712]]
this category, a requester must show that the FOIA request is
authorized by, and is made under the auspices of or in connection with
the requester's role at 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.
SSA may seek verification from the requester that the request is in
furtherance of scholarly research and will advise requesters of their
placement in this category.
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; 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 Library means an electronic location(s) that SSA uses to post
records that are made available to the public without a specific
request. SSA makes FOIA library records electronically available to the
public through our website, <a href="http://www.ssa.gov">www.ssa.gov</a>, including at <a href="http://www.ssa.gov/foia">www.ssa.gov/foia</a>.
Posted records may include those provided under agency discretion and
not required pursuant to FOIA.
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 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 <a href="/cdn-cgi/l/email-protection#a9efe6e0e887f9dccbc5c0ca87e5c0c8c0dac6c7e9dadac887cec6df"><span class="__cf_email__" data-cfemail="52141d1b137c0227303e3b317c1e3b333b213d3c122121337c353d24">[email protected]</span></a>.
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.
OPD means the Office of Privacy and Disclosure.
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.
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).
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 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 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,.
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
[[Page 102713]]
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.
SS-5 means an Application for a Social Security Card. It is used to
request an original, different, or replacement Social Security Card.
SSA means the Social Security Administration.
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 governments.
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 confidential commercial or financial information
means trade secrets and confidential commercial or financial
information that 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. SSA 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 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,
your request may be handled 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. Privacy Act requests are also processed under the FOIA,
when appropriate, to give you the benefit of both statutes. 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 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.
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 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.
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
<a href="http://www.ssa.gov/foia">www.ssa.gov/foia</a> website or the National FOIA Portal at <a href="http://www.FOIA.gov">www.FOIA.gov</a>.
(2) Email: <a href="/cdn-cgi/l/email-protection#0640494f47285673646a6f65284a6f676f7569684675756728616970"><span class="__cf_email__" data-cfemail="40060f09016e1035222c29236e0c292129332f2e003333216e272f36">[email protected]</span></a>.
(3) Mail: SSA Office of Privacy and Disclosure, ATTN: Freedom of
Information Officer, 6401 Security Boulevard, Baltimore, MD 21235.
(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
[[Page 102714]]
Sec. 402.20(b), requests for information about a living person.
Sec. 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 Sec. 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 Sec. Sec. 402.155 through 402.165.
(c) If the records sought are earnings records covered by Sec.
422.125 of this chapter.
(d) If a request 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;
(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) Consultation and referral. When reviewing records located by
SSA in response to a request, SSA will determine whether another agency
of the Federal Government is better able to determine whether the
record is exempt from disclosure under the FOIA. As to any such record,
SSA will proceed in one of the following ways:
(1) Referral of FOIA records in whole or in part to an outside
agency. We will notify the requester in writing when we opt to refer
records in whole or in part to another agency for direct response from
that agency, including the name(s) or the agency(s) to which the record
was referred and that agency's FOIA contact information, unless
notification would cause harm to an interest protected under the FOIA.
In such instances, in order to avoid harm to an interest protected by
an applicable exemption, we coordinate to seek the view of the
originating agency.
(2) Agency consultation. 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
(b) of this section.
(b) Consultation with another agency or entity. If a request is for
records that originated with SSA but 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) If we receive a FOIA request that will
take longer than 10 working days to process, we will provide an
acknowledgment. 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-working 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-working day period may be extended
in unusual circumstances by written notice to the requester. See
paragraph (d) of this section.
(c) Multi-tracking procedures. FOIA requests are categorized
simple, complex, or expedited. Unless granted expedited processing, we
process FOIA requests in each track according to a first-in, first-out
basis.
(1) Simple. For most non-expedited requests, we make a
determination about release of the record(s) requested within 20-
working days.
(2) Complex. We will place into a complex processing queue any
request that cannot be completed within 20-working days due to the
complex nature of the request, including consultation with components
that may maintain records subject to the request. 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.
(3) 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) 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; 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. 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.
(f) Fee notice. FOIA requesters are issued a fee notice that
informs them of the estimated search, review, and duplication time
associated with processing their FOIA request. For more information on
fees, see Sec. Sec. 402.70 through 402.80.
(g) Tolling. (1) We may stop or toll the 20 working days in two
circumstances:
[[Page 102715]]
(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. 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.
(i) No records determinations. 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 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.
(j) Furnishing records. We will furnish copies 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.
(k) Directing a 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 may advise
the requester to submit their request to that other agency. In such
cases, 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.
(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:
(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 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
[[Page 102716]]
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.
(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.
[[Page 102717]]
(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 in writing 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;
(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. 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 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 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
[[Page 102718]]
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) FOIA library. If the record(s) requested are already publicly
available, either in our electronic FOIA library or elsewhere online,
such as at <a href="http://www.ssa.gov">www.ssa.gov</a>, 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 <a href="/cdn-cgi/l/email-protection#4e0801070f601e3b2c22272d6002272f273d21200e3d3d2f60292138"><span class="__cf_email__" data-cfemail="5a1c15131b740a2f383633397416333b332935341a29293b743d352c">[email protected]</span></a>.
(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, 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. If we receive an appeal that will take longer
than 10 working days to process, we will provide an acknowledgment. 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-working days.
(2) Complex. Appeals of complex requests cannot be completed within
20-working days. 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-working 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.
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.
Sec. 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.
Sec. 402.125 The FOIA Exemption 3: Records exempted by other
statutes.
(a) Required record release. Exemption 3 authorizes our agency to
withhold 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.
[[Page 102719]]
Sec. 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--(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 a reason to believe that information in the records could
reasonably be disclosed under the FOIA. The submitter's notice will
describe and include a copy of the trade secret or commercial or
financial information requested or portions of records containing the
information. In cases involving many submitters, SSA may post or
publish a submitter's notice in a place or manner reasonably likely 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) Unless SSA
grants an extension, the submitter must respond to the notice within
five working 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 working 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
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. 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 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. 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
[[Page 102720]]
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.
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. 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 that would disclose
techniques and procedures for law enforcement investigations or
prosecutions, or would disclose guidelines for law enforcement
investigations or prosecutions if such disclosure could reasonably be
expected to risk circumvention of the law. In some cases, it is not
possible to describe even in general terms those techniques without
disclosing the very material to be withheld.
(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 SSA makes available for public inspection in an
electronic format may be accessed through <a href="http://www.ssa.gov">www.ssa.gov</a> 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) SSA's Public 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 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;
and
(5) By posting in the FOIA library.
(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:
[[Page 102721]]
(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. 2024-29647 Filed 12-17-24; 8:45 am]
BILLING CODE 4191-02-P
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</html>Indexed from Federal Register on December 18, 2024.
This is legal information, not legal advice. Laws vary by jurisdiction and change frequently. Always verify current law with official sources and consult a licensed attorney in your jurisdiction for advice on your specific situation.