Electronic Freedom of Information Act Amendments of 1996

SOCIAL SECURITY ADMINISTRATION

20 CFR Part 402

RIN 0960-AE68

Electronic Freedom of Information Act Amendments of 1996

AGENCY: Social Security Administration.

ACTION: Final rules.

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SUMMARY: These rules reflect the changes made by the Electronic Freedom

of Information Act Amendments (EFOIA) of 1996 that give the public

access to government information and records maintained in an

electronic format, provide for expedited processing of certain

requests, establish ``electronic reading rooms,'' eliminate an agency

backlog of work as a justification for delay in processing requests,

require redacted material to be estimated or indicated in an agency's

response, and require an agency reference guide on FOIA to be made

available.

EFFECTIVE DATE: These rules are effective July 29, 1998.

FOR FURTHER INFORMATION CONTACT: Ron Martorana, Social Insurance

Specialist, 3-A-6 Operations Building, 6401 Security Boulevard,

Baltimore, MD 21235, (410) 965-1745 for information about these rules.

For information on eligibility on claiming benefits, call our national

toll-free number, 1-800-772-1213.

SUPPLEMENTARY INFORMATION: These rules revise our existing regulations

to reflect the provisions of Pub. L. 104-231, the Electronic Freedom of

Information Act Amendments of 1996. Pub. L. No. 104-231 amended 5

U.S.C. 552, popularly known as the Freedom of Information Act (FOIA),

to provide public access to information in an electronic format,

provide for expedited processing of certain requests, establish

[[Page 35131]]

``electronic reading rooms,'' eliminate an agency backlog of work as a

justification for delay in processing requests, require redacted

material to be estimated or indicated in an agency's response, and

require an agency reference guide on FOIA to be made available. The

rules also make technical changes to related rules.

According to the new law, the term ``record'' encompasses

information, subject to the requirements of the FOIA, when maintained

in any format, including an electronic format. The category of

``reading room'' records, at 5 U.S.C. 552(a)(2), is expanded to include

records that the agency discloses in response to a FOIA request that

have become, or are likely to become, the subject of future requests.

An index of those records that are subject to multiple requests must be

prepared and made available by computer telecommunications by December

31, 1999. Furthermore, agencies must create an ``electronic reading

room'' to contain records created after November 1, 1996 that are

required to be made available under 5 U.S.C. 552(a)(2). Additionally,

agencies must make reasonable efforts to search for records, even when

information is maintained in an electronic database, unless such

efforts would significantly interfere with the operation of the

agency's automated information system. If a requester requests a record

in a particular format, agencies must attempt to provide the record in

that format if the record is readily reproducible in such format.

The general period for responding to requests has been changed from

10 days to 20 days. Moreover, multi-track processing may be offered as

a way to provide more timely responses. Agencies and requesters may

discuss alternative time frames to process requests, or modifications

to the requests, when the general 20-day time for responding cannot be

met. Expedited processing of requests must be done when there is a

compelling need for the records. ``Compelling need'' means that the

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 when a request is made by a person primarily engaged

in disseminating information (e.g., the news media), and there is an

urgency to inform the public concerning actual or alleged Federal

Government activity.

The amount of information deleted on a record must be indicated,

unless doing so would harm an interest protected by an exemption; and,

if technically feasible, the indication shall be at the place in the

record where the deletion is made. If whole pages or documents are

withheld, an estimate of the volume of material withheld must be

provided to the requester, unless doing so would harm an interest

protected by an exemption. Furthermore, a guide for requesting records,

to include an index and description of major record systems, must be

made available to the public.

The definition of ``record'' in Sec. 402.30 is revised to reflect

the provisions of section 3 of Pub. L. No. 104-231 to include

information stored in an electronic format, and the meaning of

``record'' in the Records Disposal Act, 44 U.S.C. 3301, as well as the

Supreme Court's decision in U.S. Dept. of Justice v. Tax Analysts, 492

U.S. 136 (1989).

Section 402.35 is revised to reflect the provisions of section 4 of

Pub. L. No. 104-231 concerning availability of records, extent of

deletions, and a general index of records.

Section 402.40 is revised to indicate that SSA Publications on CD-

ROM are available for purchase.

Section 402.45 is revised to add a new category to reading room

records. These are records which ``the agency determines have become or

are likely to become the subject of subsequent requests for

substantially the same records.'' Also, we have provided an electronic

index for this category of records as reflected in section 4 of the

EFOIA amendments.

Section 402.100(b) is revised to reflect the decision in Dept. of

Justice v. Reporters Committee for Freedom of the Press, 489 U.S. 749

(1989) concerning whether personal information may be released. In that

case, the Court stated that the only public interest to be considered

is whether disclosure would shed light on how an agency performs its

statutory duties, and that the identity of the requester or purpose for

which the information is requested is not relevant.

Section 402.110, entitled ``Exemption seven for withholding

records: Law enforcement'', in 20 CFR 400-499 as revised as of April 1,

1997 is incorrectly designated. It should be designated as

Sec. 402.105.

Section 402.115, which explains the deletion of personally

identifying details in requested records, and Sec. 402.120, which

explains the creation of records, has been moved for ease of reference

to Sec. 402.145, which explains what we are required to do when

responding to a request for information.

Section 402.130 is revised by adding language about the electronic

availability of a guide/handbook on how to request information from the

Social Security Administration (SSA). We also describe how the public

can request FOIA records.

Section 402.140 is revised to include multi-track processing,

requests for expedited processing and the changes in time limits as

provided in sections 7 and 8 of the EFOIA amendments. The EFOIA

amendments extended the general period of 10 days for determining

whether to comply with a request to 20 days.

The EFOIA amendments encourage agencies which experience

difficulties in meeting FOIA's time limits to experiment with multi-

track processing. Before the enactment of the EFOIA amendments, due to

increased volumes of FOIA requests and staff losses, we experimented

with various processes to reduce backlogs, among them multi-tracking.

The results are encouraging and we plan to institute multi-tracking

procedures. We have established four tracks depending on the ease of

providing an answer:

(1) Track 1--Requests that can be answered with readily

available records or information. These are the fastest to process.

(2) Track 2--Requests where we need records or information from

other offices throughout the Agency, but we do not expect that the

decision on disclosure will be as time consuming as for requests in

Track 3.

(3) Track 3--Requests which require a substantive decision or

input from another office or agency and a considerable amount of

time will be needed for that, or the request is complicated or

involves a large number of records. Usually, these cases will take

the longest to process.

(4) Track 4--Requests that will be expedited.

The EFOIA requires agencies to promulgate regulations providing

expedited access for requesters who show a ``compelling need'' for a

speedy response. The EFOIA describes compelling need as when there is

``an imminent threat to the life or physical safety of an individual,''

or when it is a request from a member of the media, and there is an

``urgency to inform the public concerning actual or alleged Federal

Government activity.''

Section 402.145 is revised to include new provisions on searching

for, retrieving, and furnishing records in electronic formats, and

describes how deletions on records will be indicated.

Section 402.150 is revised to cross-refer to Sec. 402.45 to

describe the indexing of records for the new category of reading room

records. This describes our procedures for releasing records for which

we receive multiple requests or expect to receive multiple requests.

Section 402.160 is revised to correct the reference to

Sec. 402.145(b) and (c) and to clarify these paragraphs. These

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references should read Sec. 402.155(b) and (c).

Comments on Notice of Proposed Rulemaking

These regulations were published in the Federal Register (62 FR

43489) as a notice of proposed rulemaking on August 14, 1997.

Interested parties were given 30 days to submit comments. No public

comments were received. We are, therefore, publishing these final rules

with no substantive changes from the proposed rules.

Regulatory Procedures

Executive Order No. 12866

We have consulted with the Office of Management and Budget (OMB)

and determined that these rules do not meet the criteria for a

significant regulatory action under Executive Order 12866. Thus, they

were not subject to mandatory OMB review.

Regulatory Flexibility Act

We certify that these rules do not have a significant economic

impact on a substantial number of small entities since these rules

affect only individuals. Therefore, a regulatory flexibility analysis

as provided in the Regulatory Flexibility Act, as amended, is not

required.

Paperwork Reduction Act

These regulations impose no additional reporting and recordkeeping

requirements subject to OMB clearance.

(Catalog of Federal Domestic Assistance Program Nos. 96.001 Social

Security-Disability Insurance; 96.002 Social Security-Retirement

Insurance; 96.004 Social Security-Survivors Insurance; 96.006

Supplemental Security Income)

List of Subjects in 20 CFR 402

Administrative practice and procedure, Freedom of information,

Reporting and recordkeeping.

Dated: June 18, 1998.

Kenneth S. Apfel,

Commissioner of Social Security.

For the reasons set out in the preamble, we are amending part 402

of 20 CFR chapter III as follows:

PART 402--AVAILABILITY OF INFORMATION AND RECORDS TO THE PUBLIC

1. The authority citation for 20 CFR part 402 continues to read as

follows:

Authority: Secs. 205, 702(a)(5), and 1106 of the Social Security

Act; (42 U.S.C. 405, 902(a)(5), and 1306); Section 413(b) of the

Federal Mine Safety and Health Act of 1977 (30 U.S.C. 923b), 5

U.S.C. 552 and 552a; 8 U.S.C. 1360; 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.

2. Section 402.30 is amended by revising the definition of

``records'' to read as follows:

Sec. 402.30 Definitions.

* * * * *

Records means any information maintained by an agency, regardless

of forms or characteristics, that is made or received in connection

with official business. This includes handwritten, typed, or printed

documents (such as memoranda, books, brochures, studies, writings,

drafts, letters, transcripts, and minutes) and material in other forms,

such as punchcards; magnetic tapes; cards; computer discs or other

electronic formats; paper tapes; audio or video recordings; maps;

photographs; slides; microfilm; and motion pictures. It does not

include objects or articles such as exhibits, models, equipment, and

duplication machines, audiovisual processing materials, or computer

software. It does not include personal records of an employee, or

books, magazines, pamphlets, or other reference material in formally

organized and officially designated SSA libraries, where such materials

are available under the rules of the particular library.

* * * * *

3. Section 402.35 is amended by adding new paragraph (d) to read as

follows:

Sec. 402.35 Publication.

* * * * *

(d) Availability by Telecommunications. To the extent practicable,

we will make available by means of computer telecommunications the

indices and other records that are available for inspection.

4. Section 402.40 is amended by adding new paragraph (h) to read as

follows:

Sec. 402.40 Publications for sale.

* * * * *

(h) SSA Publications on CD-ROM.

5. Section 402.45 is amended by adding new paragraph (d) to read as

follows:

Sec. 402.45 Availability of records.

* * * * *

(d) Electronic Reading Room. We will prepare an index of records

which have become or are likely to become the subject of subsequent

requests. The index, and, to the extent practicable, the records will

be made available on the Internet or by other computer

telecommunications means.

6. Section 402.100 is amended by revising the heading and paragraph

(b) to read as follows:

Sec. 402.100 Exemption six: Clearly unwarranted invasion of personal

privacy.

* * * * *

(b) Balancing test. In deciding whether to release records to you

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. In determining 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. However, in our evaluation of requests

for records we attempt to guard against the release of information that

might involve a violation of personal privacy because of a requester

being able to ``read between the lines'' or piece together items that

would constitute information that normally would be exempt from

mandatory disclosure under Exemption Six.

* * * * *

7. The first Sec. 402.110 entitled ``Exemption seven for

withholding records: Law enforcement'' is amended by correctly

designating the section number to read Sec. 402.105.

Sec. 402.115 [Removed]

8. Section 402.115 is removed.

Sec. 402.120 [Removed]

9. Section 402.120 is removed.

10. Section 402.130 is revised to read as follows:

Sec. 402.130 How to request a record.

You may request a record in person or by mail or by electronic

telecommunications. To the extent practicable, and in the future, we

will attempt to provide access for requests by telephone, fax,

Internet, and e-mail. Any request should reasonably describe the record

you want. If you have detailed information which would assist us in

identifying that record, please submit it with your request. We may

charge fees for some requests (Secs. 402.145-402.175 explain our fees).

You should identify the request as a Freedom of Information Act request

and mark the outside of any envelope used to submit your request as a

``Freedom of Information Request.'' The staff at any Social Security

office can help you prepare this request.

11. Section 402.140 is revised to read as follows:

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Sec. 402.140 How a request for a record is processed.

(a) In general, we will make a determination as to whether a

requested record will be provided within 20 days (excepting Saturdays,

Sundays, and legal public holidays) after receipt of a request by the

appropriate official (see Sec. 402.135). This 20-day period may be

extended in unusual circumstances by written notice to you, explaining

why we need additional time, and the extension may be for up to 10

additional working days when one or more of the following situations

exist:

(1) The office processing the request needs to locate and then

obtain the record from another facility;

(2) We need to locate, obtain, and appropriately examine a large

number of records which are requested in a single request; or

(3) The office processing the request needs to consult with another

agency which has a substantial interest in the subject matter of the

request. This consultation shall be conducted with all practicable

speed.

(b) If we cannot process your request within 10 additional days, we

will notify you and provide you an opportunity to limit the scope of

the request so that it may be processed within the additional 10 days,

or we will provide you with an opportunity to arrange with us an

alternative time frame for processing the request, or for processing a

modified request.

(c) Multi-tracking procedures. We will establish four tracks for

handling requests and the track to which a request is assigned will

depend on the nature of the request and the estimated processing time:

(1) Track 1--Requests that can be answered with readily

available records or information. These are the fastest to process.

(2) Track 2--Requests where we need records or information from

other offices throughout the Agency but we do not expect that the

decision on disclosure will be as time consuming as for requests in

Track 3.

(3) Track 3--Requests which require a decision or input from

another office or agency and a considerable amount of time will be

needed for that, or the request is complicated or involves a large

number of records. Usually, these cases will take the longest to

process.

(4) Track 4--Requests that will be expedited.

(d) We will provide for expedited access for requesters who show a

``compelling need'' for a speedy response. The EFOIA describes

compelling need as when the 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 when the

request is from a person primarily engaged in disseminating information

(such as a member of the news media), and there is an ``urgency to

inform the public concerning actual or alleged Federal Government

activity.'' We also will expedite processing of a request 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 it cannot be

obtained elsewhere in a reasonable amount of time. We will respond

within 10 days to a request for expedited processing and, if we decide

to grant expedited processing, we will then notify you of our decision

whether or not to disclose the records requested as soon as

practicable.

12. Section 402.145 is revised to read as follows:

Sec. 402.145 Responding to your request.

(a) 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

manually or by automated means, including any information stored in an

electronic form or format, except when such efforts would significantly

interfere with the operation of our automated information system. If we

have stored the records you want in the National Archives or another

storage center, we will retrieve and review them for possible

disclosure. However, the Federal Government destroys many old records,

so sometimes it is impossible to fill requests. Various laws,

regulations, and manuals give the time periods for keeping records

before they may be destroyed. For example, there is information about

retention of records in the Records Disposal Act of 1944, 44 U.S.C.

3301 through 3314; the Federal Property Management Regulations, 41 CFR

101-11.4; and the General Records Schedules of the National Archives

and Records Administration.

(b) Furnishing records. We will furnish copies only of records that

we have or can retrieve. We are not required to create new records or

to perform research for you. We may decide to conserve Government

resources and at the same time supply the records you need by

consolidating information from various records rather than copying them

all. For instance, we could extract sections from various similar

records instead of providing repetitious information. We generally will

furnish only one copy of a record. We will make reasonable efforts to

provide the records in the form or format you request if the record is

readily reproducible in that form or format.

(c) Deletions. When we publish or otherwise make available any

record, we may delete information that is exempt from disclosure. For

example, in an opinion or order, statement of policy, or other record

which relates to a private party or parties, the name or names and

other identifying details may be deleted. When technically feasible, we

will indicate the extent of deletions on the portion of the record that

is released or published at the place of the deletion unless including

that indication would harm an interest protected by an exemption. If we

deny a request, in whole or in part, we will make a reasonable effort

to estimate the volume of any requested matter that is not disclosed,

unless such an estimate would harm an interest protected by an

exemption.

(d) Creation of records. We are not required to create new records

merely to satisfy a request. However, we will search manually or by

automated means to locate information that is responsive to the

request. If extensive computer programming is needed to respond to a

request, we may decline to commit such resources, or if we agree to do

so, we may charge you for the reasonable cost of doing so. We do not

mean that we will never help you get information that does not already

exist in our records. However, diverting staff and equipment from our

other responsibilities may not always be possible.

13. Section 402.150 is amended by revising paragraph (a), removing

paragraph (b), and redesignating paragraph (c) as new paragraph (b) to

read as follows:

Sec. 402.150 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 you also. However, we will not release it to you if a statute

forbids this disclosure, and we will not necessarily release it to you

if an exemption applies in your situation and it did not apply, or

applied differently, in the previous situation(s) or if the previous

release was unauthorized. See Sec. 402.45(d) regarding records in

electronic reading rooms.

* * * * *

14. Section 402.160 is amended by revising paragraphs (b) and (c)

to read as follows:

Sec. 402.160 Fees to be charged--general provisions.

* * * * *

[[Page 35134]]

(b) If we are not charging you for the first two hours of search

time, under paragraph (c) of Sec. 402.155, and those two hours are

spent on a computer search, then the two free hours are the first two

hours of the time needed to access the information in the computer.

(c) If we are not charging you for the first 100 pages of

duplication, under paragraph (b) or (c) of Sec. 402.155, then those 100

pages are the first 100 pages of photocopies of standard size pages, or

the first 100 pages of computer printout.

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[FR Doc. 98-17104 Filed 6-26-98; 8:45 am]

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