102704 Federal Register / Vol. 89, No. 243 / Wednesday, December 18, 2024 / Rules and Regulations 

1Public Law 110–175; https://www.congress.gov/ 

bill/110th-congress/senate-bill/2488/text. 

2Public Law 114–185; https://www.congress.gov/ 

bill/114th-congress/senate-bill/337/text. 

3 88 FR 36980. 

4The 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; 

https://centerforplainlanguage.org/learningtraining/five-steps-plain-language/. 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. 

to review the Department’s actions and 

documents subject to the Office of 

Information and Regulatory Affairs 

review under E.O. 12866. These reviews 

include policy and guidance documents 

that OMB determines are significant. 

Classification 

This final rule is a rule of agency 

organization, procedure, or practice, 

codifying in the CFR the Department’s 

existing procedures. Therefore, pursuant 

to 5 U.S.C. 553(b)(3)(A), notice and 

public comment are not required. 

Because a notice and public comment 

are not required for this rule by 5 U.S.C. 

553, or by any other law, the analytical 

requirements of the Regulatory 

Flexibility Act, 5 U.S.C. 601, et seq., are 

not applicable. Accordingly, no 

regulatory flexibility analysis is required 

and none has been prepared. 

This rule has been determined to be 

not significant for purposes of Executive 

Order 12866. 

This rule does not have any collection 

of information requirements under the 

Paperwork Reduction Act. 

List of Subjects in 15 CFR Part 29 

Administrative practice and 

procedure, Guidance documents. 

PART 29—[REMOVED AND 

RESERVED] 

■ For the reasons stated in the preamble 

and under the authority of 15 U.S.C. 

1512, the Department of Commerce 

amends subtitle A in title 15 of the Code 

of Federal Regulations by removing and 

reserving part 29. 

Dated: December 12, 2024. 

Nell Abernathy, 

Director, Office of Policy and Strategic 

Planning, U.S. Department of Commerce. 

[FR Doc. 2024–29890 Filed 12–17–24; 8:45 am] 

BILLING CODE P 

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. 

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 https://

www.ssa.gov. 

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. 

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

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 


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5 88 FR at 36981. 

6 88 FR at 36982. 

OPEN Government Act of 2007 5 and the 

FOIA Improvement Act of 2016.6

The changes we are finalizing in this 

final rule to conform with the 

requirements of the OPEN Government 

Act of 2007 are as follows: 

• Within revised § 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; 

• Within revised §§ 402.70 through 

402.80, we are clarifying our rules 

concerning fees; 

• Within revised §§ 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 

• Within revised § 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: 

• Within revised §§ 402.15(a) and 

402.60(k), we are adding the foreseeable 

harm standard; 

• Within revised § 402.105, we are 

updating the appeal timeframe to 90 

days (from 30 days); 

• Within revised §§ 402.05 and 

402.100, discussed earlier, we are 

addressing the FOIA Public Liaison and 

OGIS; 

• Within revised §§ 402.70 through 

402.80, we are clarifying our fee 

charging rules, including when unusual 

circumstances apply; 

• Within revised § 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, 

• Within revised § 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 

• In § 402.10, we clarified the 

definition of ‘‘commercial interest’’ in 

response to public comment. 

• In § 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. 

• In § 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. 

• In § 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. 

• In § 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. 

• In § 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. 

• In § 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.’’ 

• In § 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 § 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 § 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. 

• In § 402.25, we modified the 

language to align more with the FOIA 

statute by changing ‘‘member of the 

public’’ to ‘‘person.’’ 

• In § 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.’’ 

• In § 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 https://www.ssa.gov/foia for 

additional contact information, as well 

as an email address for inquiries and a 

physical mailing address. 

• In § 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 


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7 5 U.S.C. 552(a)(6)(E)(vi). 

articulate how we respond outside of 

the FOIA process. 

• In § 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 § 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 

§ 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.’’ 

• We moved § 402.55(b) Referral of 

requester to another agency, to 

§ 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. 

• In § 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.’’ 

• In § 402.60(b) and elsewhere 

throughout the regulation, we changed 

the term ‘‘business days’’ to ‘‘working 

days’’ for consistency with the FOIA 

statute. 

• In § 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, firstout basis.’’ We further clarify in 

§ 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.’’ 

• In § 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 

§ 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 § 402.60(d) 

is merely a clarifying statement of how 

our tracks align with the unusual 

circumstance requirements in FOIA. 

• In § 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.’’ 

• In § 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.’’ 

• In § 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.’’ 

• 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. 

• In § 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.’’ 

• In § 402.65, we modified (a), (a)(2), 

and (b). Under § 402.65(a), we removed 

the phrase ‘‘such as’’ before we list the 

criteria for expedited processing. For 

§ 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 § 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.’’ 

• In § 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. 

• In § 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. 


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8 88 FR at 36983. 

• In § 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 § 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 § 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.’ ’’ 

• In § 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.’’ 

• In § 402.105(c)(2), we clarify how 

long it takes the agency to process 

appeals placed in the complex multitrack: ‘‘Appeals of complex requests 

cannot be completed within 20 working 

days.’’ 

• In § 402.115 through § 402.145, we 

revised some of the introductions 

within the FOIA Exemptions to account 

that there may be considerations beyond 

the Exemption itself. 

• In § 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. 

• In § 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.’’ 

• In § 402.145(e), we modified the 

language to mirror the FOIA statute 

concerning Exemption 7(E). 

• In § 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. 

• In § 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

Section-by-Section Changes 

20 CFR PART 402 REORGANIZATION OF SECTIONS

Reorganization of 20 CFR part 402 

Existing section Existing → New New section 

402.5. Scope and purpose ............................................ 402.5 → 402.05 ........................ 402.05. Scope and purpose of this part. 

402.10. Policy ................................................................ 402.10 → 402.15 ...................... 402.10. Definitions. 

402.15. Relationship between the FOIA and the Privacy Act of 1974.402.15 → 402.20 ...................... 402.15. SSA’s FOIA policy. 

402.20. Requests not handled under the FOIA ............ 402.20 → 402.45 ...................... 402.20. Relationship between the FOIA and the Privacy Act of 1974. 

402.25. Referral of requests outside of SSA ................ 402.25 → 402.55 ...................... 402.25. Who can file a FOIA request? 

402.30. Definitions ......................................................... 402.30 → 402.10 ...................... 402.30. Requirements of a FOIA request. 

402.35. Publication ........................................................ 402.35 → 402.160 .................... 402.35. Where to submit a FOIA request. 

402.40. Publications for sale ......................................... 402.40 → 402.165 .................... 402.40. Requests for deceased individual’s records. 

402.45. Availability of records ....................................... 402.45(a) → 402.05 .................. 402.45. Requests handled outside of the FOIA process. 

402.50. Availability of administrative staff manuals ...... 402.50 removed ........................ 402.50. FOIA Officer’s authority. 

402.55. Materials available at district offices and 

branch offices.

402.55 → 402.155 .................... 402.55. Referrals and consultations. 

402.60. Materials in field offices of the Office of Hearings and Appeals.402.60 → 402.155 .................... 402.60. How does SSA process FOIA requests? 

402.65. Health care information .................................... 402.65 removed ........................ 402.65. Expedited processing. 

402.70. Reasons for withholding some records ............ 402.70 → 402.95(b) .................. 402.70. Fees associated with processing FOIA requests. 

402.75. Exemption one for withholding records: National defense and foreign policy.402.75 → 402.115 .................... 402.75. FOIA fee schedule. 

402.80. Exemption two for withholding records: Internal personnel rules and practices.402.80 → 402.120 .................... 402.80. Charging under section 1106(c) of the Social 

Security Act. 

402.85. Exemption three for withholding records: 

Records exempted by other statutes.

402.85 → 402.125 .................... 402.85. Waiver of fees in the public interest. 

402.90. Exemption four for withholding records: Trade 

secrets and confidential commercial or financial information.

402.90 → 402.130 .................... 402.90. Notification of fees and prepayment requirements. 

402.95. Exemption five for withholding records: Internal memoranda.402.95 → 402.135 .................... 402.95. Release of records. 


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9See 42 U.S.C. 1306(c). 

20 CFR PART 402 REORGANIZATION OF SECTIONS—Continued 

Reorganization of 20 CFR part 402 

Existing section Existing → New New section 

402.100. Exemption six: Clearly unwarranted invasion 

of personal privacy.

402.100 → 402.140 .................. 402.100. FOIA Public Liaison and the Office of Government Information Services. 

402.105. Exemption seven for withholding records: 

Law enforcement.

402.105 → 402.145 .................. 402.105. Appeals of the FOIA Officer’s determination. 

402.110. Exemption eight and nine for withholding 

records: Records on financial institutions; records on 

wells.

402.110 → 402.150 .................. 402.110. U.S. District Court action. 

402.115. Reserved ........................................................ Reserved → New section 

402.115.

402.115. The FOIA Exemption 1: National defense 

and foreign policy. 

402.120. Reserved ........................................................ Reserved → New section 

402.120.

402.120. The FOIA Exemption 2: Internal personnel 

rules and policies. 

402.125. Who may release a record ............................. 402.125 → 402.50 .................... 402.125. The FOIA Exemption 3: Records exempted 

under other statutes. 

402.130. How to request a record ................................ 402.130 → 402.35 .................... 402.130. The FOIA Exemption 4: Trade secrets and 

confidential commercial or financial information. 

402.135. Where to send a request ............................... 402.130 → 402.30 and 402.35 402.135. The FOIA Exemption 5: Internal documents. 

402.140. How a request for a record is processed ...... 402.140(a)–(c) → 402.60 ..........

402.140(d) → 402.65 ................

402.140. The FOIA Exemption 6: Clearly unwarranted invasion of personal privacy. 

402.145. Responding to your request ........................... 402.145(d) → 402.15(a)(2) .......

402.145(a)–(c) → 402.60 ..........

402.145. The FOIA Exemption 7: Law enforcement. 

402.150. Release of records ......................................... 402.150 → 402.95 .................... 402.150. The FOIA Exemptions 8 and 9: Records on 

financial institutions; records on wells. 

402.155. Fees to be charged—categories of requests 402.155 → 402.70–402.75 ....... 402.155. Records available for public inspection. 

402.160. Fees to be charged—general provisions ....... 402.160 → 402.70–402.75 ....... 402.160. Where records are published. 

402.165. Fee schedule .................................................. 402.165 → 402.75 .................... 402.165. Publications for sale through the Government Publishing Office. 

402.170. Fees for providing records and related services for program purposes pursuant to section 1106 

of the Social Security Act.

402.170 → 402.80 ....................

402.170(b) → 402.85(d) ............

Transferred as Shown, and Unused in Revised part 

402. 

402.175. Fees for providing information and related 

services for non-program purposes.

402.175 → 402.80 .................... Transferred as Shown, and Unused in Revised part 

402. 

402.180. Procedure on assessing and collecting fees 

for providing records.

402.180 → 402.90 .................... Transferred as Shown, and Unused in Revised part 

402. 

402.185. Waiver or reduction of fees in the public interest.402.185 → 402.85 .................... Transferred as Shown, and Unused in Revised part 

402. 

402.190. Officials who may deny a request for records 

under FOIA.

402.190 → 402.50 .................... Transferred as Shown, and Unused in Revised part 

402. 

402.195. How a request is denied ................................ 402.195 → 402.60 .................... Transferred as Shown, and Unused in Revised part 

402. 

402.200. How to appeal a decision denying all or part 

of a request.

402.200 → 402.105 .................. Transferred as Shown, and Unused in Revised part 

402. 

402.205. U.S. District Court Action ............................... 402.205 → 402.110 .................. Transferred as Shown, 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 https://

www.regulations.gov/document/SSA2021-0049-0001. These comments were 

from: 

• Two individuals; and 

• 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 


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10See link at, https://secure.ssa.gov/apps10/ 

reference.nsf/instructiontypecode!openview&

restricttocategory=INSTITLES. 

11See instructions at, https://secure.ssa.gov/ 

apps10/reference.nsf/links/12202023010304PM. 12 20 CFR 402.30(a)(4). 

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 

§ 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 

§ 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 § 402.85(b)(2), we 

modified § 402.85(b)(2)(iii) and added 

§ 402.85(b)(2)(iv). Within 

§ 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 

§ 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.’’ 

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 publicfacing 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. 

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 § 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. 

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 


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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 

§ 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 § 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 § 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 

§ 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 


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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. 

■ 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. 

§ 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. 

§ 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-bycase 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 


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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 § 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 § 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, www.ssa.gov, including at 

www.ssa.gov/foia. 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 

FOIA.Public.Liaison@ssa.gov. 

FOIA request means a written request 

that meets the criteria in § 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 newsdissemination 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 


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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 § 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). 

§ 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 § 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 § 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. 

§ 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 

§ 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 § 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 § 401.45 of this 

chapter. 

§ 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. 

§ 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 § 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. 

§ 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 www.ssa.gov/foia 

website or the National FOIA Portal at 

www.FOIA.gov. 

(2) Email: FOIA.Public.Liaison@

ssa.gov. 

(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. 

§ 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 


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§ 402.20(b), requests for information 

about a living person. 

§ 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 § 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 §§ 402.155 through 402.165. 

(c) If the records sought are earnings 

records covered by § 422.125 of this 

chapter. 

(d) If a request does not meet the 

requirements of a FOIA request as 

defined in § 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. 

§ 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 § 402.105. 

§ 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. 

§ 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 § 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 

§ 402.100. 

(3) Expedited processing. Unless 

granted expedited processing, we 

process FOIA requests according to a 

first-in, first-out basis. See § 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 §§ 402.70 

through 402.80. 

(g) Tolling. (1) We may stop or toll the 

20 working days in two circumstances: 


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(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 § 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 § 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. 

§ 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 

§ 402.105 will also apply to these 

appeals. 

§ 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 § 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 § 402.85. 

(2) FOIA fee categories. The FOIA 

establishes three fee categories of 

requesters, i.e., commercial use, noncommercial 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 § 402.75 

for the FOIA fee schedule. Requesters 

may request a fee waiver, as described 

in § 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 WashingtonBaltimore-Arlington, DC-MD-VA-WVPA. 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 


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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. 

§ 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 § 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 § 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 § 402.85 for 

fee waiver information. 

§ 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. Nonprogram 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. 


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(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 

§ 402.105 will also apply to these 

appeals. 

§ 402.85 Waiver of fees in the public 

interest. 

A requester may request waiver or 

reduction of fees, whether charged 

under § 402.75 or § 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 § 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. 

§ 402.90 Notification of fees and 

prepayment requirements. 

Requesters must agree to pay the fee, 

whether charged under § 402.75 or 

§ 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 § 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 § 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 


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credit card (MasterCard, Visa, Discover, 

American Express, or Diner’s Club). 

§ 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 §§ 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 

www.ssa.gov, 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. 

§ 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 

§ 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 

FOIA.Public.Liaison@ssa.gov. 

(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. 

§ 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 § 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 § 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 

§ 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). 

§ 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 

§ 402.50(a), requesters may ask a U.S. 

District Court to review that denial. See 

5 U.S.C. 552(a)(4)(B). 

§ 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. 

§ 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. 

§ 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. 


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§ 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 nondisclosure, 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. 

§ 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. 

§ 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 


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of individuals if we do not have the 

consent (consistent with § 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 caseby-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. 

§ 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. 

§ 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. 

§ 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 

www.ssa.gov 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. 

§ 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: 


khammond on DSK9W7S144PROD with RULES
Federal Register / Vol. 89, No. 243 / Wednesday, December 18, 2024 / Rules and Regulations 102721 

1Unless otherwise indicated, references to 

‘‘section’’ or ‘‘§ ’’ are to sections of the Code or the 

Treasury regulations issued thereunder. 

2The Affordable Care Act (or ACA) refers to the 

Patient Protection and Affordable Care Act (Pub. L. 

111–148, enacted on March 23, 2010), as amended 

by the Health Care and Education Reconciliation 

Act of 2010 (Pub. L. 111–152, enacted on March 30, 

2010). 

(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). 

§ 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 

DEPARTMENT OF THE TREASURY 

Internal Revenue Service 

26 CFR Part 1 

[TD 10019] 

RIN 1545–BR31 

Definition of the Term ‘‘Coverage 

Month’’ for Computing the Premium 

Tax Credit 

AGENCY: Internal Revenue Service (IRS), 

Treasury. 

ACTION: Final regulations. 

SUMMARY: This document contains final 

regulations that amend the definition of 

‘‘coverage month’’ and amend certain 

other rules in existing income tax 

regulations regarding the computation 

of an individual taxpayer’s premium tax 

credit. The coverage month amendment 

generally provides that, in computing a 

premium tax credit, a month may be a 

coverage month for an individual if the 

amount of the premium paid, including 

by advance payments of the premium 

tax credit, for the month for the 

individual’s coverage is sufficient to 

avoid termination of the individual’s 

coverage for that month. The final 

regulations also amend the existing 

regulations relating to the amount of 

enrollment premiums used in 

computing the taxpayer’s monthly 

premium tax credit if a portion of the 

monthly enrollment premium for a 

coverage month is unpaid. Finally, the 

final regulations clarify when an 

individual is considered to be not 

eligible for coverage under a State’s 

Basic Health Program. The final 

regulations affect taxpayers who enroll 

themselves, or enroll a family member, 

in individual health insurance coverage 

through a Health Insurance Exchange 

and may be allowed a premium tax 

credit for the coverage. 

DATES: 

Effective date: These final regulations 

are effective on December 18, 2024. 

Applicability date: These final 

regulations apply to taxable years 

beginning on or after January 1, 2025. 

FOR FURTHER INFORMATION CONTACT: 

Clara Raymond at (202) 317–4718 (not 

a toll-free number). 

SUPPLEMENTARY INFORMATION: 

Authority 

This document contains amendments 

to the Income Tax Regulations (26 CFR 

part 1) under section 36B of the Internal 

Revenue Code (Code).1 Section 36B(h) 

provides an express delegation of 

authority for the Secretary of the 

Treasury or her delegate (Secretary) to 

prescribe such regulations as may be 

necessary to carry out section 36B, 

including regulations that provide for 

the coordination of the premium tax 

credit (PTC) allowed under 36B with the 

program for advance payments of the 

PTC (APTC) under section 1412 of the 

Affordable Care Act.2 The final 

regulations are also issued under the 

express delegation of authority under 

section 7805(a), which authorizes the 

Secretary to ‘‘prescribe all needful rules 

and regulations for the enforcement of 

[the Code], including all rules and 

regulations as may be necessary by 

reason of any alteration of law in 

relation to internal revenue.’’ 

Background 

I. Section 36B Rules Relating to 

Coverage Months and Monthly PTC 

Amount 

Section 36B provides a PTC for 

applicable taxpayers who meet certain 

eligibility requirements, including that a 

member of the taxpayer’s family enrolls 

in a qualified health plan (QHP) through 

a Health Insurance Exchange (Exchange) 

for one or more ‘‘coverage months.’’ 

Section 1.36B–3(c)(1) provides that a 

month is a coverage month for an 

individual if (i) as of the first day of the 

month, the individual is enrolled in a 

QHP through an Exchange; (ii) the 

taxpayer pays the taxpayer’s share of the 

premium for the individual’s coverage 

under the plan for the month by the 

unextended due date for filing the 

taxpayer’s income tax return for that 

taxable year, or the full premium for the 

month is paid by APTC; and (iii) the 

individual is not eligible for the full 

calendar month for minimum essential 

coverage (within the meaning of 

§ 1.36B–2(c)) other than coverage 

described in section 5000A(f)(1)(C) of 

the Code (relating to coverage in the 

individual market). 

Section 1.36B–3(d)(1) provides that 

the PTC (also called the premium 

assistance amount) for a coverage month 

is the lesser of (i) the premiums for the 

month, reduced by any amounts that 

were refunded, for one or more QHPs in 

which a taxpayer or a member of the 

taxpayer’s family enrolls (enrollment 

premiums); or (ii) the excess of the 

adjusted monthly premium for the 

applicable benchmark plan over 1⁄12 of 

the product of a taxpayer’s household 

income and the applicable percentage 

for the taxable year. The term ‘‘family’’ 

is defined in § 1.36B–1(d), and the 

applicable percentage is defined in 

§ 1.36B–3(g). 

Section 1.36B–2(c)(2)(i) provides that, 

for purposes of determining whether a 

given month is a coverage month for an 

individual, an individual generally is 

considered eligible for governmentsponsored minimum essential coverage 

if the individual meets the criteria for 

coverage under a government-sponsored 

program described in section 

5000A(f)(1)(A) as of the first day of the 

first full month the individual may 

receive benefits under the program. 

Section 1.36B–2(c)(2)(v) provides that 

an individual is treated as not eligible 

for Medicaid, CHIP, or a similar 

program for a period of coverage under 

a QHP if, when the individual enrolls in 

the QHP, an Exchange determines or 

considers (within the meaning of 45 

CFR 155.302(b)) the individual to be not 

eligible for Medicaid or CHIP. 


khammond on DSK9W7S144PROD with RULES