I-1-4-2.Freedom of Information Act

Last Update: 12/1/10 (Transmittal I-1-60)

A. General

  1. Unless an exemption applies, the Freedom of Information Act (FOIA) requires us to disclose information in any agency record upon request from the public. This includes access to records in a Privacy Act system of records available in, and releasable from, any agency receiving office, including the certified electronic folder (CEF) or paper folder. (See 5 U.S.C. § 552a(b), 5 U.S.C. § 552a(d)(1), Program Operations Manual System (POMS) GN 03340.010, DI 81001.035, Administrative Message (AM)-08184; see AM-09155 when charging fees in accordance with GN 03311.005.) FOIA differs from the Privacy Act, which pertains only to agency records about individuals that are maintained in a “system of records.” (See 20 CFR 401.25 and Hearings, Appeals and Litigation Law (HALLEX) manual I-1-4-3 A.3.) Requests to access records in a Privacy Act system of records are also FOIA requests, except those from requesters noted in item 3 of this subsection.

  2. As defined by 20 CFR 401.25, a record means any handwritten, typed, or printed document and documentary material in other forms.

  3. The public does not include Federal agencies, courts, or the Congress (individual Members of Congress have the same rights of access as those guaranteed to any individual), but does include State agencies, individuals, corporations, partnerships, foreign, State, or local governments, and most other entities.

  4. FOIA requests can be made for any reason. The identity of the requester and the reason for making the request have no bearing on the merits of the request. We must apply a presumption in favor of disclosure and disclose the information requested unless one of the exemptions applies. When an exemption does apply, we may then consider whether disclosure will suit the purpose behind FOIA— i.e., to keep citizens informed about what their government is doing.

  5. Requests need not be received in writing and need not cite FOIA to be handled under FOIA regulations. FOIA applies to all records maintained by the agency, including personally identifiable records, such as the CEF, which the receiving office may disclose under FOIA or the Privacy Act (POMS GN 03301.015B.1. & 2.).

B. Hearing Office and Regional Office Procedures

  1. Unless an exemption applies (20 CFR 402.75 - .110 and HALLEX I-1-4-2 A), FOIA requires us to disclose information in any agency record when we receive a request from the public. This includes personally identifiable records in a Privacy Act system of records available in any hearing office (HO) or regional office (RO) that receives such a request, such as third-party-with-consent requests for copies of the CEF or paper folder. The receiving office must provide access or release these records in accordance with items 1, 2, and 3 of this subsection. (See 5 U.S.C. § 552a(b), 5 U.S.C. § 552a(d)(1), POMS GN 03301.015B.1 - 2., GN 03340.010, DI 81001.035, AM-08184; see AM-09155 when the HO or RO is charging fees in accordance with POMS GN 03311.005 and item 3 of this subsection.)

  2. When a HO or RO receives a request for information under FOIA, which may subsume an access request under item 1 of this subsection, and the information is available in the office, grant the request (POMS GN 03350.005A.2.a.) and release the information (5 U.S.C. § 552a(b), 5 U.S.C. § 552a(d)(1), 20 CFR 401.55 (c)(2), 20 CFR 401.100, 20 CFR 402.155 through 402.185, POMS GN 03340.010, GN 03350.005B.1.a. - e., GN 03311.005, DI 81001.035, GN 03305.005, GN 03305.006, AM-08157, AM-08184, AM-09155 and HALLEX I-1-4-2 A). Provide the information directly, such as on a disk burned from the CEF for a third party per an individual's written consent or properly completed SSA-3288 (form and instructions at SSA-3288), or tell the requester where to find the information (e.g., on SSA Online or elsewhere on the Internet).

  3. If charging fees per POMS GN 03311.005, use the Office of Disability Adjudication and Review (ODAR) overhead rate (64 percent as of August 19, 2010) in lieu of the field office (FO) overhead rate. (To assist in fee calculation use AM-09155, substituting the ODAR rate for the FO rate.) The Division of Cost Analysis, working with the Office of Budget, Facilities and Security, will post the ODAR overhead rate at http://eis.ba.ssa.gov/ofpo/dca/Overhead.html and update it yearly. Check the site to ensure that the current ODAR overhead rate is applied. Requests to access records in a Privacy Act system of records are also FOIA requests (HALLEX I-1-4-2 A.1.), including disclosures with consent (POMS GN 03340.010). Charge an additional $10.00 if you are burning a disk per POMS DI 81001.035, GN 03311.005, and AM-09155. Do not charge the remittance fee of $26.00 that FOs charge and do not collect any payment. Instead, tell the requestor to pay the fee by mailing a check to:

    Social Security Administration
    Office of Finance
    P O Box 17042
    Baltimore, MD 21235-7042

    Inform the requestor of SSA's employer identification number (EIN) (52-6004813) for his or her records. Ask the requestor to include his or her EIN with the payment. If there is any question about these requests, including whether or how to charge a fee, HO management may contact their ODAR RO. If the question cannot be resolved at the regional level, the ODAR regional management team may contact the Office of Privacy and Disclosure (OPD) through the Audit Liaison Staff (ALS) in the Office of Executive Operations and Human Resources, Division of Executive Operations.

  4. When the request cannot be fully granted (per 20 CFR 402.195), respond to oral requests per POMS GN 03350.005B.2.a., providing the option of submitting a written request at https://secure.ssa.gov/apps9/eFOIA-FEWeb/internet/main.jsp?action=OPD or a request by mail to:

    Social Security Administration
    OEO FOIA Workgroup
    P O Box 33022
    Baltimore, MD 21290-3022
  5. When the request cannot be fully granted (per 20 CFR 402.195), handle a written request in accordance with POMS GN 03350.005B.3. by forwarding the request to:

    Deputy Director, Office of Privacy and Disclosure
    Office of the General Counsel
    1508 Woodlawn Dr
    1500 Dunleavy Building
    Baltimore, MD 21235
  6. We are required to provide only one copy of the requested material. Further, ODAR HOs and ROs only furnish copies of records (including all or part of the CEF or paper folder) that are available in the receiving ODAR site. If the record is not available in the receiving office (e.g., a paper folder is in a payment center), refer the request to the servicing FO per POMS GN 03340.010B.1. We also are not required to create new records, or to organize or reorganize files in order to accommodate a request.

    NOTE:

    ODAR HOs and ROs must refer court orders and subpoenas to the regional Office of the General Counsel (OGC) (POMS GN 03350.005A.2.f. and GN 03360.025 D.) HOs also must refer requests for certification to their respective ROs. The Regional Chief Administrative Law Judges may certify copies of records per POMS GN 03360.025 (there is an additional $15.00 fee for this service). If there are any questions about these FOIA or Privacy Act access requests, including whether or how to charge a fee, HO management may contact their ODAR RO. If the questions cannot be resolved at the regional level, the ODAR regional management team may contact OPD through ALS.

C. ODAR Headquarters (HQ) Procedures

With the exception of the procedures for the Office of Appellate Operations (HALLEX I-1-4-3 H.) and in cases involving requests from Members of Congress, which require ODAR HQ components to consult with the Congressional and Public Affairs Branch (CPAB), all ODAR HQ components should consult with ALS when they receive FOIA and Privacy Act requests. ALS generally:

  • Handles FOIA and Privacy Act requests received by ODAR HQ components.

  • Assists the ODAR regional management teams when questions cannot be resolved at the regional level through contact with the regional PACs.

  • Assists OPD in processing ODAR-related requests that OPD receives online or by surface mail.

  • Routes any misdirected requests it receives from any source to the responsible SSA components, either directly, via OPD, or, in the case of misdirected requests from the ODAR field, in consultation with the Office of the Chief Administrative Law Judge. Misdirected requests may include, but are not limited to: court orders or subpoenas (referred to OGC, POMS GN 03350.005A.2.f. and GN 03360.025D); requests for earnings information (referred to the Division of Earnings Record Operations, POMS GN 03311.005F); and requests for paper folders no longer in the possession of ODAR (referred to FOs, POMS GN 03340.010).