Title 20—Employees' Benefits--Volume 1
PART 403—TESTIMONY BY EMPLOYEES AND THE PRODUCTION OF RECORDS AND INFORMATION IN LEGAL PROCEEDINGS
§ 403.100   When can an SSA employee testify or produce information or records in legal proceedings?
An SSA employee can testify concerning any function of SSA or any information or record created or acquired by SSA as a result of the discharge of its official duties in any legal proceeding covered by this part only with the prior authorization of the Commissioner. An SSA employee can provide records or other information in a legal proceeding covered by this part only to the extent that doing so is consistent with 20 CFR parts 401 and 402. A request for both testimony and records or other information is considered two separate requests—one for testimony and one for records or other information. SSA maintains a policy of strict impartiality with respect to private litigants and seeks to minimize the disruption of official duties.
§ 403.105   What is the relationship between this part and 20 CFR parts 401 and 402?
(a) General. Disclosure of SSA's records and information contained in those records is governed by the regulations at 20 CFR parts 401 and 402. SSA employees will not disclose records or information in any legal proceeding covered by this part except as permitted by 20 CFR parts 401 and 402.
(b) Requests for information or records that do not include testimony. (1) If you do not request testimony, §§ 403.120-403.140 do not apply.
(2) If 20 CFR part 401 or 402 permits disclosure to you of any requested record or information, we will make every reasonable effort to provide the disclosable information or record to you on or before the date specified in your request.
(3) If neither 20 CFR part 401 nor 402 permits disclosure of information or a record you request, we will notify you as provided in § 403.145. We will also send you any notices required by part 401 or 402.
§ 403.110   What special definitions apply to this part?
The following definitions apply:
(a) Application means a written request for testimony that conforms to the requirements of § 403.120.
(b)(1) Employee includes—
(i) Any person employed in any capacity by SSA, currently or in the past;
(ii) 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; and
(iii) Any person who is not described elsewhere in this definition but whose disclosure of information is subject to the regulations at 20 CFR part 401, currently or in the past.
(2) For purposes of this paragraph (b), a person subject to SSA's jurisdiction or control includes 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), and any consultant (including medical or vocational experts or medical services or consultative examination providers), contractor, or subcontractor of such person. Such a person would also include any person who has served or is serving in any advisory capacity, formal or informal.
(3) For purposes of this paragraph (b), a person employed by SSA in the past is considered an employee only when the matter about which the person would testify is one in which he or she was personally involved while 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 a person would not be considered an employee when the person will rely only on expertise or general knowledge he or she acquired while working at SSA.
(c) Commissioner means the Commissioner of Social Security or his or her designee(s).
(d) 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 proceeding also includes any deposition or other pretrial proceeding, including a formal or informal request for testimony by an attorney or any other person.
(e) Record has the same meaning as “record” in 20 CFR 402.30.
(f) Request means any attempt to obtain the production, disclosure, or release of information, records, or the testimony of an SSA employee, including any order, subpoena, or other command issued in a legal proceeding as well as any informal or other attempt (by any method) by a party or a party's representative.
(g) SSA means the Social Security Administration.
(h) Testimony includes any sworn statement (oral or written), including (but not limited to)—
(1) Any statement provided through personal appearance; deposition; or recorded interview; or provided by telephone, television, or videotape;
(2) Any response during discovery or other similar proceedings that would involve more than the mere physical production of records; and
(3) Any declaration made under penalty of perjury or any affidavit.
(i) We or our means the Social Security Administration.
(j) You or your means an individual or entity that submits a request for records, information or testimony.
§ 403.115   When does this part apply?
(a) Except as specified in paragraph (b) of this section, this part applies to any request in connection with any legal proceeding for SSA records or other information or for testimony from SSA or its employees. This part applies to requests for testimony 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.
(b) This part does not apply to requests for testimony—
(1) In an SSA administrative proceeding;
(2) In a legal proceeding to which SSA is a party (“SSA” here includes the Commissioner and any employee acting in his or her official capacity);
(3) From the United States Department of Justice;
(4) In a criminal proceeding in which the United States is a party;
(5) In a legal proceeding 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;
(6) From either house of Congress;
(7) 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
(8) Where Federal law or regulations expressly require a Federal employee to provide testimony.
§ 403.120   How do you request testimony?
(a) You must submit a written application for testimony of an SSA employee. Your application must-
(1) Describe in detail the nature and relevance of the testimony sought in the legal proceeding;
(2) Include a detailed explanation as to why you need the testimony, why you cannot obtain the information you need from an alternative source, and why providing it to you would be in SSA's interest; and
(3) Provide the date and time that you need the testimony and the place where SSA would present it.
(b) You must submit a complete application to SSA at least 30 days in advance of the date that you need the testimony. If your application is submitted fewer than 30 days before that date, you must provide, in addition to the requirements set out above, a detailed explanation as to why—
(1) You did not apply in a timely fashion; and
(2) It is in SSA's interest to review the untimely application.
(c) You must send your application for testimony to: Office of the General Counsel, Office of General Law, Social Security Administration, Attn: Touhy Officer, 6401 Security Boulevard, Baltimore, MD, 21235. If you are requesting testimony of an employee of the Office of the Inspector General, send your application to the address in § 403.125.
(d) The Commissioner has the sole discretion to waive any requirement in this section.
(e) If your application does not include each of the items required by paragraph (a) of this section, we may return it to you for additional information. Unless the Commissioner waives one or more requirements, we will not process an incomplete or untimely application.
§ 403.125   How will we handle requests for records, information, or testimony involving SSA's Office of the Inspector General?
A request for records or information of the Office of the Inspector General or the testimony of an employee of the Office of the Inspector General will be handled in accordance with the provisions of this part, except that the Inspector General or the Inspector General's designee will make those determinations that the Commissioner otherwise would make. Send your request for records or information pertaining to the Office of the Inspector General or your application for testimony of an employee of the Office of the Inspector General to: Office of the Inspector General, Social Security Administration, 6401 Security Boulevard, Room 3-ME-1, Baltimore, MD 21235. Requests may also be sent via email to SSA.OIG.Touhy.Requests@ssa.gov.
§ 403.130   What factors may the Commissioner consider in determining whether SSA will grant your application for testimony?
In deciding whether to authorize the testimony of an SSA employee, the Commissioner will consider applicable law and factors relating to your need and the burden to SSA. The considerations include, but are not limited to, the following:
(a) Risk of law violation or compromise of Government privilege. (1) Would providing the testimony violate a statute (such as 26 U.S.C. 6103 or section 1106 of the Social Security Act, 42 U.S.C. 1306), Executive Order, or regulation (such as 20 CFR part 401)?
(2) Would providing the testimony put confidential, sensitive, or privileged information at risk?
(b) Burden on SSA. (1) Would granting the application unduly expend for private purposes the resources of the United States (including the time of SSA employees needed for official duties)?
(2) Would the testimony be available in a less burdensome form or from another source?
(3) Would the testimony be limited to the purpose of the request?
(4) Did you previously request the same testimony in the same or a related proceeding?
(c) Interests served by allowing testimony. (1) Would providing the testimony serve SSA's interest?
(2) Would providing the testimony maintain SSA's policy of impartiality among private litigants?
(3) Is another government agency involved in the proceeding?
(4) Do you need the testimony to prevent fraud or similar misconduct?
(5) Would providing the testimony be necessary to prevent a miscarriage of justice or to preserve the rights of an accused individual to due process in a criminal proceeding?
§ 403.135   What happens to your application for testimony?
(a) If 20 CFR part 401 or 402 does not permit disclosure of information about which you seek testimony from an SSA employee, we will notify you under § 403.145.
(b) If 20 CFR part 401 or 402 permits disclosure of the information about which you seek testimony,
(1) The Commissioner makes the final decision on your application;
(2) All final decisions are in the sole discretion of the Commissioner; and
(3) We will notify you of the final decision on your application.
§ 403.140   If the Commissioner authorizes testimony, what will be the scope and form of that testimony?
The employee's testimony must be limited to matters that were specifically approved. We will provide testimony in the form that is least burdensome to SSA unless you provide sufficient information in your application for SSA to justify a different form. For example, we will provide an affidavit or declaration rather than a deposition and a deposition rather than trial testimony.
§ 403.145   What will SSA do if you have not satisfied the conditions in this part or in 20 CFR part 401 or 402?
(a) We will provide the following information, as appropriate, to you or the court or other tribunal conducting the legal proceeding if your request states that a response is due on a particular date and the conditions prescribed in this part, or the conditions for disclosure in 20 CFR part 401 or 402, are not satisfied or we anticipate that they will not be satisfied by that date:
(1) A statement that compliance with the request is not authorized under 20 CFR part 401 or 402, or is prohibited without the Commissioner's approval;
(2) The requirements for obtaining the approval of the Commissioner for testimony or for obtaining information, records, or testimony under 20 CFR part 401 or 402; and
(3) If the request complies with § 403.120, the estimated time necessary for a decision. We will make every reasonable effort to provide this information in writing on or before the date specified in your request.
(b) Generally, if a response to a request for information, records, or testimony is due before the conditions of this part or the conditions for disclosure in 20 CFR part 401 or 402 are met, no SSA employee will appear.
(c) SSA will seek the advice and assistance of the Department of Justice when appropriate.
§ 403.150   Is there a fee for our services?
(a) General. Unless the Commissioner grants a waiver, you must pay fees for our services in providing information, records, or testimony. You must pay the fees as prescribed by the Commissioner. In addition, the Commissioner may require that you pay the fees in advance as a condition of providing the information, records, or testimony. Make fees payable to the Social Security Administration by check or money order.
(b) Records or information. Unless the Commissioner grants a waiver, you must pay the fees for production of records or information prescribed in 20 CFR §§ 401.95 and 402.155 through 402.185, as appropriate.
(c) Testimony. Unless the Commissioner grants a waiver, you must pay fees calculated to reimburse the United States Government for the full cost of providing the testimony. Those costs include, but are not limited to—
(1) The salary or wages of the witness and related costs for the time necessary to prepare for and provide the testimony and any travel time, and
(2) Other travel costs.
(d) Waiver or reduction of fees. The Commissioner may waive or reduce fees for providing information, records, or testimony under this part. The rules in 20 CFR § 402.185 apply in determining whether to waive fees for the 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 may consider other factors, including but not limited to—
(1) The ability of the party responsible for the application to pay the full amount of the chargeable fees;
(2) The public interest, as described in 20 CFR § 402.185, affected by complying with the application;
(3) The need for the testimony or information in order to prevent a miscarriage of justice;
(4) The extent to which providing the testimony or information serves SSA's interest; and
(5) The burden on SSA's resources required to provide the information or testimony.
§ 403.155   Does SSA certify records?
We can certify the authenticity of copies of records we disclose pursuant to 20 CFR parts 401 and 402, and this part. We will provide this service only in response to your written request. If we certify, we will 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 this certification are set forth in 20 CFR 402.165(e).