TN 5 (02-19)

GN 03350.005 Freedom of Information Act Requests

A. Freedom of Information Act (FOIA) requirements

The FOIA (5 U.S.C. § 552) requires Federal agencies to provide their records to any individual who makes a proper request for them, unless one of nine specific exemption applies to the records. Even though the FOIA permits an agency to withhold a record that meets one of the nine exemptions, it does not require withholding. We may choose to disclose under these circumstances:

  • Section 1106(a) of the Social Security Act, the Privacy Act (PA) (5 U.S.C. § 552a), or another statute permits disclosure, and

  • no demonstrable harm would result.

The FOIA applies to all records maintained by a Federal agency and may include:

  • final agency opinions in the adjudication of claims;

  • statements of policy and interpretations adopted by the agency, but not published in the Federal Register (e.g., Commissioner's decisions, Social Security Rulings, etc.);

  • administrative staff manuals and instructional material; and

  • personally identifiable records.

B. What is a FOIA request

A FOIA request is any request from a member of the public for records in possession or control of a Federal agency. A "member of the public" includes requests from individuals, corporations, State agencies and foreign entities. The request does not need to cite the FOIA, but must reasonably describes the records sought.

C. What is NOT a FOIA request

The following types of requests are not FOIA requests:

  • requests for explanations of policies and procedures, the status of claims, and publicly available information about Social Security programs (such as public information material);

  • requests by individuals (or persons authorized to act on their behalf, such as a parent or legal guardian) for access to their own records (we process these requests as Privacy Act requests - see GN 03340.000 for more information regarding Privacy Act requests); and

  • requests from other Federal agencies, or from Federal or State courts.

D. Authority to make decisions on FOIA requests

Only the FOIA Officer, who is also the Deputy Executive Director for the Office of Privacy and Disclosure (OPD), Office of the General Counsel (OGC), may make initial determinations to disclose or withhold (in full or in part) records under the FOIA, except as otherwise provided by regulation, 20 CFR Part 402.

Some disclosures are governed by Federal laws and regulations. For example:

  • disclosures authorized by 20 CFR Parts 401 and 402;

  • disclosures required by Federal law (other than the FOIA);

  • disclosures from PA systems of records, where the subject of the record consented or the disclosure is pursuant to a published routine use;

  • disclosures authorized by Federal regulations, which control the record in question. (e.g., Office of Personnel Management’s regulations control disclosure of Federal government employee information and authorize public disclosure of Federal employees’ name, present and past position titles, position descriptions and duty stations, past and present grade, and salary including awards. 5 CFR § 293.311.);

  • disclosures of material described in the indexes of administrative staff manuals and instructions, unless otherwise noted therein as sensitive;

  • disclosures required by contracts or other legally binding agreements with SSA;

  • disclosures permissible to the Federal government; and

  • disclosures initiated by SSA.

E. Processing requests for information

1. Where do I submit a request?

A requester may submit a FOIA request for a record via:

  • the Internet at https://foiaonline.regulations.gov/foia/action/public/home;

  • email sent to FOIA.Public.Liaison@ssa.gov;

  • mail, identified by marking the outside envelope used to submit the request as a "Freedom of Information Request" to:

    SSA Office of Privacy and Disclosure
    ATTN: Freedom of Information Office
    Social Security Administration
    G-401 West High Rise
    6401 Security Boulevard Baltimore, MD 21235; or
  • via fax to (410) 966-0869.

A guide to FOIA requests is available from our Internet website at www.ssa.gov/foia/.

2. Can we comply with the request for information?

FOIA provides that all requesters must:

  • reasonably describe the record(s) sought; and

  • provide sufficient information to enable use to locate the record(s) sought (e.g., date or date range, title or name, author, recipient, subject matter of the record, case number, file designation, or record number).

3. Do we have the requested information?

Agency employees, familiar with the subject matter of a request, should be able to locate agency records responsive to a request. We do not have the requested records if the record:

  • is maintained by another agency;

  • does not exist; or

  • is destroyed.

NOTE: Agencies should not be (1) creating records; (2) performing research; or (3) giving opinions or answering questions in order to respond to a FOIA request. Creating a record does not include generating a record from an existing database or program. If any of these actions would be needed to respond to a FOIA request, please notify OPD and do not perform these actions without OPD approval. Actions that you should notify OPD of include, but are not limited to, responses involving (1) creating programs or scripts to retrieve or compile records or information; (2) manipulation of systems, information, or records; (3) aggregating or compiling information or records; and (4) providing answers or opinions that do not currently exist in agency records. If the information exists in a different form than the requester has asked for, employees should consult with OPD to make a determination.

4. Is there a fee for providing the information?

To determine if there is a fee for processing a request, refer to Privacy Act and FOIA Fees at GN 03311.000. Provide an explanation of the fees, if any, and advise the requester how to pay the fees.

5. Can we disclose the information?

The FOIA Officer makes the initial decision involving FOIA exemptions. There are nine exemptions to the FOIA. See Exhibit 2, GN 03301.099C for a complete listing of FOIA exemptions. We usually withhold records under the FOIA based on the following six exemptions:

a. Exemption 2, Internal Personnel Rules and Practices

Exemption 2 protects records that “relate solely” to the internal personnel rules and practices of an agency. They include such matters as hiring and firing, work rules, selection, placement and training, discipline, compensation and benefits.

b. Exemption 3, Prohibited by Law

Exemption 3 protects records whose disclosure are prohibited by statutes that require the agency to withhold the record in full, or that establish specific criteria for withholding information.

EXAMPLES:

  • The Internal Revenue Code (IRC) restricts disclosure of tax return information. FOIA requests from third parties and employers for tax return information should be sent to:

Social Security Administration
Division of Earnings and Business Services
P.O. Box 33011
Baltimore, MD 21290-3003

The Division of Earnings and Business Services and other SSA components, as necessary, should consult with OPD concerning the appropriateness of disclosing tax return information to a third party. Additional guidance about access and disclosure of tax return information is available in GN 03320.000.

  • We restrict disclosure of information regarding identity, diagnosis, prognosis or treatment of any patient when such information is maintained in connection with a Federally assisted drug or alcohol abuse prevention function see, 42 U.S.C. 290dd-3 and 290ee-3. See GN 03305.030 for more information regarding these types of records.

c. Exemption 4, Trade Secrets and Commercial or Financial Information

  • Exemption 4 protects trade secrets and commercial or financial information that is privileged or confidential and which, if disclosed, would either cause substantial harm to a person's ability to compete with others in their business or impair the Government's ability to obtain needed information. This may include detailed information concerning profits, losses and business costs.

  • Exemption 4 also affords protection to those submitters who are required to furnish commercial or financial information to the Government by safeguarding them from the competitive disadvantages that could result from a disclosure of their information.

d. Exemption 5, Interagency or Intra-agency Memorandums

  • Exemption 5 protects interagency or intra-agency memorandums or letters, which would not be available by law to anyone other than a party in litigation with the agency.

  • Exemption 5 protects documents compiled as part of a deliberative process leading to an agency decision, as well as attorney-client privilege and attorney work-product. Examples include opinions (such as OGC opinions); recommendations; or suggestions or judgmental analyses by various SSA field and central office components, as exchanged or developed before issuing final policies or decisions.

  • Exemption 5 does not protect purely factual information maintained in a document or documents that explain decisions already made.

  • Exemption 5 is not applicable to predecisional deliberative records that were created 25 years or more before the date on which the records were requested.

e. Exemption 6, Personal Privacy

  • Exemption 6 protects the personal information of individuals and protects personal privacy interests.

  • Exemption 6 is cited to withhold all information about individuals in "personnel and medical files and similar files," when the disclosure of such information "would constitute a clearly unwarranted invasion of personal privacy.” It applies in any situation in which the privacy interest in the requested information outweighs the public interest (if any) served by disclosing the information. If a requester believes the disclosure is in the public interest, the requester bears the burden of establishing proof of public interest.

f. Exemption 7, Investigatory Records

Exemption 7 protects records compiled for law enforcement, but only to the extent that the production of such law enforcement records or information:

  • could reasonably be expected to interfere with enforcement proceedings (7(A));

  • would deprive a person of a right to a fair trial or any impartial adjudication (7(B));

  • could reasonably be considered an unwarranted invasion of personal privacy (7(C));

  • could reasonably be expected to disclose the identity of a confidential source, including a state, local, or foreign agency or authority or any private institution which furnished information on a confidential basis (7(D));

  • could reasonably be expected to disclose confidential information furnished only by a confidential source (in the case of a record compiled by a criminal law enforcement authority in an investigation, or by an agency conducting lawful national security intelligence) (7(D));

  • would disclose investigative techniques and procedures or guidelines for law enforcement investigations or prosecutions (if such disclosure could risk circumvention of the law) (7(E)); or

  • could reasonably be expected to endanger the life or physical safety of any individual (7(F)).

6. Applying exemptions

The FOIA officer may withhold records from the public only if a FOIA exemption permits the withholding. Decisions to withhold agency records from the public must cite one or more FOIA exemptions.

7. When we may not assert an exemption

There are certain circumstances under which we may not apply FOIA exemptions to withhold records.

a. Prior disclosure

We may forfeit our right to assert the following FOIA exemptions to withhold records from the public if we previously disclosed those same records to a member of the public:

  • Exemption 2, Internal Personnel Rules and Practices

  • Exemption 4, Trade Secrets and Commercial or Financial Information

  • Exemption 5, Interagency or Intra-agency Memorandums

  • Exemption 6, Invasion of Privacy

  • Exemption 7, Investigatory Records

NOTE: Prior disclosure never waives Exemption 3.

EXAMPLE: When Mrs. B filed a claim for retirement benefits, she mentioned that she had not seen her adult son in 10 years. The claims specialist queried the son’s record and found no posted earnings since 1993. She told Mrs. B that her son had no earnings in recent years. The IRC does not permit disclosure of information about earnings or wage reports reported by an employer for a person, so this disclosure was not permissible. Mrs. B writes to the FOIA Officer for more information about her son’s last employment. The FOIA Officer must deny the request. To confirm the information previously given by the claims specialist would be another violation of law.

b. Unauthorized disclosure

If we discover prior disclosure was unauthorized, we should advise the FOIA Officer of the circumstances of the prior disclosure for corrective actions. An unauthorized disclosure generally does not constitute waiver of an exemption.

F. Processing denials

1. Authority for denial

Only the FOIA Officer (Deputy Executive Director in OPD) has the delegated authority to deny an initial FOIA request. Include, where possible, the requested documents with any concerns regarding the release of the document. Before the FOIA Officer issues a response, component FOIA Coordinators may recommend special language or propose redactions for consideration to be incorporated in the FOIA Officer’s response.

2. Notice of denial

The denial notice must include:

  • the FOIA exemption that justifies the denial;

  • an explanation of how the exemption applies to the requested information;

  • a description of the materials being withheld and the quantity of the withheld material;

  • a decision to charge or waive fees, as appropriate;

  • the mediation services offered by the Office of Government Information Services (OGIS);

  • the name, title, and address of the official to whom the requester may appeal; and

  • the FOIA Officer's signature and title.

G. Congressional requests

Many Congressional requests we receive:

  • relate to a specific or general legislative function;

  • are inquiring on behalf of a constituent; or

  • involve a personal interest.

The FOIA specifically prohibits relying on one of its exemptions to withhold information from Congress; however, a Congressional request is not always a request from Congress.

1. Request on behalf of the Congress

A congressional representative may request non-tax return information on matters within the jurisdiction of a particular committee or subcommittee of Congress in pursuit of official duties.

A request on behalf of Congress is NOT a FOIA request.

  • Do not invoke FOIA exemptions to withhold information.

  • Coordinate requests with the Office of Legislative and Congressional Affairs and OGC.

2. Request on behalf of a constituent

If a congressional representative makes a request on behalf of a constituent:

  • disclose the same information to the representative that the constituent is entitled to receive, and

  • charge the appropriate fees.

See GN 03313.105 for more information regarding disclosure to congressional committees or subcommittees, and to individual congressional representatives.

3. Other requests from members of Congress

If a congressional representative makes a request that is neither on behalf of a constituent nor on behalf of the Congress:

  • Treat the request the same as any request received from any other member of the public. The congressional representative has the same rights to the information as any other member of the public.

  • Process the request under FOIA if the request does not include a consent form.

H. Requests for DDS records

  • Requests for State Disability Determination Services (DDS) records may or may not be subject to the Federal FOIA.

  • Most States have their own State public information laws, which may apply to some requests for DDS records.

  • For purposes of disclosure, we consider records DDS compiled on behalf of Social Security Administration (SSA), for which we have published a PA system of records notice, to be SSA records that are subject to the FOIA. In addition, we generally consider records maintained in SSA’s information systems to be SSA records that are subject to the FOIA.

NOTE: FOIA requests concerning DDS records should be sent to OPD. OPD, in consultation with the Office of General Law, will make the determination about whether the records belong to DDS or SSA.

I. Initial FOIA processing and appeals

1. Determinations

The FOIA requires agencies to:

  • make a determination and release the requested records within 20 business days of receipt of a request;

  • notify the requester of that determination in writing;

  • notify the requester of the right to seek assistance from the FOIA Public Liaison;

  • notify the requester of the right to seek dispute resolution services from the OGIS, within the National Archives and Records Administration;

  • notify the requester of the right to appeal an adverse determination; and

  • on appeal, notify the requester of the provisions for judicial review when the denial of a request for records is in whole or part upheld.

The 20 business day period begins on the date the request is received by the appropriate agency component and can be suspended if we are waiting for clarification from the requester or to clarify issues regarding fee assessment. In either case, receipt of the requester’s response resumes the 20 business day time period.

J. FOIA processing time limitations

1. Time extensions and written notice

a. Unusual circumstances

We may extend the 20 business day response time by written notice to the requester for an additional 10 days when unusual circumstances exist. Unusual circumstances exist if we must:

  • search for and collect the records from field facilities or other components separate from the office processing the request;

  • search for, collect, and examine a voluminous amount of separate and distinct records; or

  • consult with other components or another agency that has a substantial interest in the determination or subject matter of the request.

b. Notification

If we cannot provide a response within 20 business days:

  • send the requester a written explanation for the delay and the date we expect to send a response.

  • Do not specify a date that would result in an extension of more than 10 business days.

c. Negotiation with the requester

When a request involves unusual circumstances and we need an extension of time to process the request, we must:

  • notify the requester and provide the requester an opportunity to limit the scope of the request so that it can be processed within the time limit;

  • arrange an alternative timeframe to process the request; and

  • inform the requester of the services of the FOIA Public Liaison and the right to seek dispute resolution services from OGIS.

If the requester refuses to limit the scope, modify the request, or arrange an alternative timeframe, the courts will consider this as a factor in determining whether exceptional circumstances exist and may allow us additional time to complete our review of the records.

2. Requests for expedited processing

a. Compelling need

We will provide expedited processing for requesters who show a compelling need for a speedy response when:

  • failure to obtain the records on an expedited basis could reasonably be expected to pose an imminent threat to the life or physical safety of an individual; or

  • the request is from an individual primarily engaged in disseminating information, such as member of the news media, and there is an urgency to inform the public concerning actual or alleged Federal Government activity.

b. Denial of legal right

We will provide expedited processing if the requester explains in detail, 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 the requested information cannot be obtained elsewhere within a reasonable amount of time.

c. Time limit for response

The FOIA requires Federal agencies to make a determination on requests for expedited processing within 10 business days. We will make a determination on requests for expedited processing and notify the requester of our decision within 10 days after the date of the request.

d. Court review

If we fail to meet the 20 business day response time (or extension date), the requester may deem the request denied and seek review in a United States District Court.

K. SS-5 requests involving extreme age

We normally do not assume that an individual is deceased without proof of death (e.g., death certificate, obituary, newspaper article, or police report). However, when disclosing SS-5 records on extremely aged number holders (NH) for whom no proof of death exists, we apply the “120 year rule.” Under this policy, we release the SS-5 in its entirety, including parents’ names, if: the NH’s birth date exceeds 120 years and no proof of death exists or, the NH’s birth date exceeds 100 years and we have proof of the NH’s death.

L. Fee waiver requests

The FOIA permits Federal agencies to waive or reduce fees when furnishing the requested information is in the public’s interest. The FOIA specifically defines the term “public interest” by providing that we waive or reduce fees if disclosure is likely to contribute significantly to the public’s understanding of government operations or activities and is not primarily in the commercial interest of the requester. The requester must satisfy both of these statutory requirements before we will waive or reduce properly assessed fees. We must consider requests for a waiver or reduction of fees on a case-by-case basis since the information requested varies from request to request. NOTE: The Privacy Act does not have a provision allowing for the waiver of fees. Therefore, this section will only apply to requests made under FOIA and not requests for access to records under the Privacy Act pursuant to 5 U.S.C. § 552a(d).

1. Who may request fee waiver?

Any individual who makes a FOIA request may request a fee waiver.

2. Who handles fee waiver requests?

The FOIA Officer decides whether the FOIA requester meets the fee waiver requirements and notifies the requester. The PA and FOIA coordinator will forward FOIA fee waiver requests to the FOIA Officer in OPD.

3. Fee waiver denials

The FOIA Officer notifies the requester, in writing, of the decision denying a fee waiver. The denial notice also informs the requester that he or she has 90 days from receipt of the denial notice to file an appeal.

4. Fee waiver denial appeals

The Executive Director for OPD has authority to decide appeals of fee waiver denials.

5. Court review

If the Executive Director of OPD denies the request for a fee waiver on appeal, the requester may seek further review in a United States District Court.


To Link to this section - Use this URL:
http://policy.ssa.gov/poms.nsf/lnx/0203350005
GN 03350.005 - Freedom of Information Act Requests - 07/27/2011
Batch run: 02/13/2019
Rev:07/27/2011