TN 3 (09-08)
GN 03330.017 Policy and Procedures for Handling Requests for Testimony by Employees and Production of Records in Legal Proceedings
A. Policy for handling requests for testimony by employees and information in legal proceedings
SSA’s regulations at 20 C.F.R. Part 403 govern requests for SSA employee testimony and the production of records and information in legal proceedings. These regulations became effective April 13, 2001. With regard to requests for SSA employee testimony, SSA maintains a policy of strict impartiality with respect to private litigants and seeks to minimize the disruption of official duties. The instructions in this section provide you with information on handling requests (including subpoenas and court orders) under the new regulations. With certain exceptions, 20 C.F.R. Part 403 covers legal proceedings that SSA is not a party. It applies to court orders, subpoenas and requests for SSA records or other information, or for testimony from SSA or its employees related to SSA’s functions or to any information or record created or acquired by SSA, as a result of the discharge of its official duties for use in proceedings before courts and other forums, such as administrative hearings. Part 403 does not, however, authorize testimony by employees or production of records or information where such testimony or disclosure or records or information would not be authorized by 20 C.F.R. Part 401 (Disclosure of Official Records and Information or 20 C.F.R. Part 402 (Availability of Information and Records to the Public).
Specifically, the new regulations change the way in which individuals seeking SSA employee testimony must request such testimony. You should continue, however, to handle subpoenas and requests for documents or testimony in the same manner you do now.
B. Definition of terms
The new regulations makes clear that the terms “request” and “application” have different meanings.
Request means any attempt to obtain information, records, or testimony. This includes most subpoenas.
Application is the formal written request for testimony that conforms to the requirements established in the regulations. Only Touhy “applications” that follow the formal procedure outlined in the regulations must be sent to Central Office for handling.
NOTE: Employees should not encourage requesters to obtain a subpoena or court order to request employee testimony.
C. Policy – How does SSA treat a request for both testimony and records?
SSA treats a request for both testimony and records or other information as two separate requests—one for testimony and one for records or other information. The provisions of Part 403 do not authorize testimony by employees or production of records or information where such testimony or disclosure of records or information would not be permitted under Part 401 (Disclosure of Official Records and Information), or Part 402 (Availability of Information and Records to the Public). If the requester does not request testimony, Part 403 does not apply.
D. Exceptions – When do the rules in 20 C.F.R. Part 403 not apply to a request for SSA employee testimony?
In an SSA administrative proceeding;
In a legal proceeding that SSA is a party ("SSA" here includes the Commissioner and any employee acting in his or her official capacity);
When the information is requested by the U.S. Department of Justice;
In a criminal proceeding that the U.S. is a party;
In legal proceedings initiated by State or local authorities arising from an investigation or audit initiated by, or conducted in cooperation with, SSA's Office of the Inspector General (OIG);
When the information is requested by either house of Congress;
In a law enforcement proceeding related to threats or acts against SSA, its employees, or its operations ("SSA" here includes the Commissioner and any employee acting in his or her official capacity); or
Where Federal law or regulations expressly requires a Federal employee to provide testimony.
E. Who is an employee for purposes of testifying or disclosing records or information?
Any person employed in any capacity by SSA, currently or in the past;
NOTE: A person employed by SSA in the past is considered an employee only when the matter that the person testifies about is one that he or she was personally involved in while working at SSA; where the matter concerns official information that the employee acquired while working, such as sensitive or confidential agency information; where the person purports to speak for SSA; or where significant SSA resources would be required to prepare the person to testify. Such persons would not be considered an employee if the person relies only on expertise or general knowledge he or she acquired while working at SSA.
Any person appointed by, or subject to the supervision, jurisdiction, or control of SSA, the Commissioner of Social Security, or any other SSA official, currently or in the past;
Any person hired as a contractor by SSA;
Any person performing services for SSA under an agreement (such as an officer or employee of a State agency involved in determining disability for SSA);
Any consultant (including medical or vocational experts or medical services or consultative examination providers);
Any contractor or subcontractor of a person described in numbers 3, 4, and 5, in this section.
Any person who has served or is serving in any advisory capacity, formal or informal.
Any person who is not described elsewhere in this definition but whose disclosure of information is subject to the regulations contained in Part 401, currently or in the past.
F. What is testimony?
Testimony is any statement (oral or written) to be given under oath or under penalty of perjury about any SSA function or any information or record created or acquired by SSA in the performance of its official duties. Testimony includes:
Any statement provided under oath or under penalty of perjury through personal appearance;
Any statement provided under oath or under penalty of perjury through deposition;
Any statement provided under oath or under penalty of perjury through recorded interview;
Any statement provided under oath or under penalty of perjury by telephone, television, or videotape;
Any response (written or oral) provided under oath or under penalty of perjury during discovery or other similar proceedings that would involve more than mere delivery of copies of records; and,
Any declaration made under penalty of perjury or any affidavit.
G. What is a legal proceeding?
A legal proceeding includes any pretrial, trial, and post-trial stage of any existing or reasonably anticipated judicial or administrative action, hearing, investigation, or similar proceeding before a court, commission, board, agency, or other tribunal, authority or entity, foreign or domestic. Legal proceedings also include any deposition or other pretrial proceeding, including a formal or informal request for testimony by an attorney or any other person.
H. When is an SSA employee permitted to give testimony
An SSA employee may not give testimony in a legal proceeding covered by 20 C.F.R. Part 403, unless the Commissioner or the Commissioner’s designee approves the request. The Commissioner’s designee for handling requests for testimony from an employee of OIG is the Inspector General. The Commissioner’s designee for handling all other requests for employee testimony is the Office of the General Counsel. OGC has redelegated the authority to approve or disapprove requests for SSA employee testimony to the Associate General Counsel for General Law.
I. What is the procedure for requesting testimony?
To obtain testimony of an SSA employee in a legal proceeding, the requester must submit a written application. The application must:
Describe in detail the nature and relevance of the testimony sought in the legal proceeding;
Include a detailed explanation describing why the testimony is needed, why the information cannot be obtained from an alternative source, and why it would be in SSA's interest to provide the testimony;
Provide the date and time the testimony is required and where SSA would present it; and
Be received by SSA at least 30 days in advance of the date that the testimony is needed.
If the application is submitted fewer than 30 days before the date the testimony is needed, the requester must also provide a detailed explanation, explaining why.
If the application requests testimony of an employee of OIG, the application must be sent to: Office of the Inspector General
Social Security Administration
300 Altmeyer Building
6401 Security Boulevard
Baltimore, MD 21235-6401
All other applications for testimony must be sent to: Social Security Administration
Office of the General Counsel
Office of General Law
P.O. Box 17788
Baltimore, MD 21235-7788
If an application does not include each of the items required, SSA may return it to the requester for additional information. Unless the Commissioner or designee waives one or more requirements, an incomplete or untimely application will not be processed. The Commissioner or designee has the sole discretion to waive any requirements in 20 CFR Part 403.
NOTE: FO and RO employees should contact your regional Privacy Coordinator or the Regional Chief Counsel’s (RCC) office when you receive a request or an inquiry about a potential request for testimony whether it is or is not covered by 20 CFR Part 403. All requests for testimony should be brought to the attention of the RCC. If you have local procedures for handling these types of requests, you should follow them. In any case, be sure the RCC is contacted.
J. What happens to applications for testimony?
If 20 CFR Parts 401 or 402 do not permit disclosure of information about which testimony is needed from an SSA employee, OGC will notify the requester.
Commissioner or designee role
If 20 CFR parts 401 or 402 permit disclosure of the information for which testimony is needed, the Commissioner or designee makes the final decision on the application.
NOTE: All final decisions are the sole discretion of the Commissioner or designee. The Commissioner or designee notifies the requester of the final decision on the application.
K. What happens if the Commissioner or designee authorizes testimony?
Normally, an employee of OGC, or a Regional Office employee notifies the affected employee about the decision to permit testimony and provide additional information or guidance, as appropriate.
The employee's testimony must be limited to matters that are specifically approved. SSA will provide testimony in the form that is least burdensome to SSA, unless the requester provides sufficient information in the application for SSA to justify a different form. For example, SSA will provide an affidavit or declaration rather than a deposition and a deposition rather than trial testimony.
L. Does SSA charge fees for testimony?
Unless the Commissioner or designee grants a waiver, the requester must pay a fee for services for information, records or testimony. They must pay in accordance with 20 CFR Parts 401.95, and 402.155 - 402.185. In addition, there may be additional costs incurred, i.e., wages, salaries and travel costs.
M. May SSA waive or reduce fees?
The Commissioner or designee may waive or reduce fees for providing information, records or testimony. The rules in 20 CFR 402.185 apply in determining whether to waive fees for production of records. In deciding whether to waive or reduce fees for testimony or for production of information that does not constitute a record, the Commissioner or designee may consider other factors, including but not limited to:
The ability of the party responsible for the application to pay the full amount of the chargeable fees;
The public interest as described in 20 CFR 402.185, affected by complying with the application;
The need for the testimony or information, in order to prevent a miscarriage of justice;
The extent to which providing the testimony or information serves SSA's interest; and
The burden on SSA's resources required to provide the information or testimony.
N. Can SSA certify records?
SSA can certify the authenticity of copies of records we disclose pursuant to 20 CFR Parts 401 and 402. We provide this service only in response to a written request. If we certify, we do so at the time of the disclosure and will not certify copies of records that have left our custody. A request for certified copies of records previously released is considered a new request for records. Fees for certification are found in 20 CFR 402.165(e). See also GN 03311.000, Privacy Act and FOIA Fees.