EFFECTIVE/PUBLICATION DATE: 03/06/92
PURPOSE: To explain the policy which the Social Security Administration (SSA) applies in deciding what materials it will release and withhold, when, pursuant to the Privacy Act (PA) and/or Freedom of information Act (FOIA), claimants or their authorized representatives request information or records that may be contained within working files maintained by SSA's Hearing Offices and the Appeals Council (AC).
It is SSA's policy to withhold documents or portions of documents when the materials requested have been compiled in reasonable anticipation of a civil action or proceeding and also are exempt from mandatory disclosure under the FOIA. Under this policy, documents, or portions of documents contained in the working files mentioned above that relate to routine trivial matters, such as routing slips and cover notes, or that are inter-agency or intra-agency memoranda or communications which would not be routinely discoverable in civil litigation, will be withheld when they are requested under the PA and/or the FOIA.
CITATIONS (AUTHORITY): Section 1106(a) of the Social Security Act; 5 U.S.C. 552(a)(3), (b)(2), and (b)(5); 5 U.S.C. 552a(d)(1), (d)(5), (t)(1), and (t)(2); Regulations No. 1, Part 401, Subpart D; Regulations No. 4, section 404.1710, Regulations No. 16, section 416.1510, Regulations No. 22, section 422.416.
INTRODUCTION: Claimants or their authorized representatives sometimes seek access to documents prepared in connection with proceedings before an Administrative Law Judge (ALJ), or actions which the AC takes on review of an ALJ decision following the ALJ's disposition of a claim.
Under titles II and XVI of the Social Security Act, a party who has received a partly or wholly unfavorable determination on a claim for benefits has a right to a hearing before an ALJ. The ALJ's decision becomes the final decision of the Secretary unless the AC reviews the matter upon request of a party or on its own motion. Decisions issued by the AC are the final decisions of the Secretary.
Evidentiary documents and information relevant and material to the issues presented in a claim for benefits are made part of the record upon which the ALJ bases a decision. During the course of adjudicating a claim at the hearing level, however, an ALJ may make notes regarding the evidence, testimony, or other factors involved in the case. In addition, the ALJ and staff assigned to assist in case processing may exchange communications expressing opinions and advice regarding the evidence, the merits of the case, and other matters involving the issues presented by the claim. Also, the ALJ usually issues instructions to the staff attorney and other personnel who draft decisions and make corrections or amendments to the drafts prior to issuance.
During an AC review of an ALJ decision, the Administrative Appeals Judges, assisted by its staff, review the decision to verify compliance with the procedural and substantive requirements of the law and regulations, and the accuracy of the ALJ's ultimate findings and conclusions. Communications between Administrative Appeals Judges and staff are common and include instructions, advice and opinions on disposing of the matters at issue.
Communications between both the ALJs and staff and the Administrative Appeals Judges and staff are often reduced to writing and may be maintained in the following Privacy Act systems of records: the Claims Folder System, Administrative Law Judge Working File on Claimant Cases, and Working File of the Appeals Council.
Writings commonly found in ALJ working files include ALJ notes taken during oral hearings, written instructions and opinions, memoranda and draft decisions or orders. AC working files may contain written instructions and opinions, memoranda, case analyses, physician opinions from the AC's Medical Support Staff (MSS), and draft decisions or orders. Both the ALJ working file and the AC working file may contain advisory opinions and other communications prepared by other components of SSA, attorneys in the Office of the General Counsel (OGC) of the Department of Health and Human Services, and attorneys in the Department of Justice.
The above-described writings reflect mental impressions, evaluations, opinions, recommendations, and legal theories, and are commonly known as ALJ or AC working papers. They are used by the ALJs and Administrative Appeals Judges and their staffs during the process of disposing of cases on administrative appeal.
Working papers are used by ALJs and the AC following final disposition of a case to reconstruct the thought processes which led to the final decision if the matter is returned on remand to the deciding official (by the AC in the case of an ALJ, or a court in the case of the AC). The working papers are not evidentiary materials and are not made part of the record upon which a decision is based.
POLICY INTERPRETATION: In the past, we usually furnished to claimants and their representatives upon request materials located within our records, including the claim file, ALJ working file and AC working file. We have found, however, that ALJ and AC working papers are increasingly sought for discovery purposes in potential or actual litigation involving review of the agency's decisions. In recent years, therefore, release of ALJ and AC working papers has become a significant issue in view of the potentially harmful consequences to the integrity of the agency's decision-making process and litigation activities. In view of these considerations, we have reconsidered and changed our practice on disclosure of such records.
Every decision to release or withhold working papers covered by this Ruling must comply with the requirements of the PA and the FOIA. The PA states that, subject to certain exemptions, an individual may, ". . . gain access to his record or to any information pertaining to him which is contained in . . . [a system of records and] review the record and have a copy made of all or any portion thereof in a form comprehensible to him . . . ." 5 U.S.C. 552a(d)(1). In accordance with this requirement, SSA generally provides, and will continue to provide, information which individuals request about themselves. 20 CFR 401.400. We also generally provide such information to an individual's authorized representative. 20 CFR 404.1710 and 416.1510.
The FOIA states that ". . . each agency upon any request for records which (A) reasonably describes such records and (B) is made in accordance with published rules . . . shall make the records promptly available to any person." 5 U.S.C. 552(a)(3). Social Security regulations stipulate that the FOIA ". . . requires us to disclose any information in our records upon request from the public, unless one of several exemptions in the FOIA applies." 20 CFR 401.215. See also 20 CFR 422.416.
The PA and the FOIA must be considered together. An agency cannot rely on a FOIA exemption to withhold a document "which is otherwise accessible to [an] individual" under the PA, nor may it rely on a PA exemption to withhold records "otherwise accessible" under the FOIA. 5 U.S.C. 522a(t)(1) and (2). Thus, we may withhold only that material which is covered by both a PA exemption and a FOIA exemption.
PA Exemption (d)(5)
PA exemption (d)(5), which excludes access to "information compiled in reasonable anticipation of a civil action or proceeding," applies to the working papers described above. 5 U.S.C. 552a(d)(5). See 20 CFR 401.400(c).
Before a claim may be reviewed in Federal court under 42 U.S.C. 405(g), the claimant must exhaust all administrative remedies, including ALJ hearing and requesting AC review of the ALJ's decision. See 20 CFR 404.981 and 416.1481. Therefore, a claimant who does not receive a fully favorable decision at the hearing level must seek further review of the claim by the AC before the claim may be reviewed by a Federal court. Since claimants who are unsuccessful before the AC subsequently may appeal to the courts, working papers are maintained not only to address the issues raised at the particular adjudicative level, but also in anticipation that the case may be later appealed to the Federal courts and may be remanded for further administrative action.
The internal communications included within the working papers described above reflect this awareness of potential litigation and contain analyses, predecisional recommendations and strategies for effectively satisfying legal requirements. ALJs and Administrative Appeals Judges take into consideration the sensitivity of such cases and often include in their working papers opinions, recommendations, theories, and mental impressions to ensure an accurate, well reasoned rationale for the decision ultimately made on the matter at issue. In addition, material contained in the working papers is usually consulted in assessing the agency's options and defenses in civil actions challenging an ALJ or AC decision.
Courts have recognized that exemption (d)(5) is applicable to materials compiled in anticipation of quasi-judicial proceedings conducted in an administrative forum as well as materials compiled in anticipation of civil actions conducted in a court. See Martin v. Office of Special Counsel, MSPB, 819 F.2d 1181 (D.C. Cir. 1987); Hernandez v. Alexander, 671 F.2d 402 (10th Cir. 1982); Smiertka v. United States Department of the Treasury, etc., 447 F. Supp. 221 (D.D.C. 1978). The Social Security regulations governing disclosure of official records and information also interpret the (d)(5) exemption to apply to administrative proceedings by exempting from disclosure "[r]ecords compiled in reasonable anticipation of a court action or formal administrative proceeding." 20 CFR 401.400(c).
Accordingly, exemption (d)(5) is applicable to ALJ and AC working papers maintained in reasonable anticipation of further administrative or court proceedings in the form of AC and Federal court review. If these materials are also exempt from disclosure under the FOIA, as discussed below, they will be withheld.
FOIA Exemptions (b)(2) and (b)(5)
PA exemptions cannot prevent release of information which would otherwise be accessible under the FOIA. The FOIA mandates that an agency provide information in its files upon request from any person, but the FOIA does exempt certain information from disclosure.
Exemption (b)(2) permits the withholding of records "related solely to the internal personnel rules and practices of an agency." 5 U.S.C. 552(b)(2). Routine administrative notes and memoranda, filing and routing instructions, and other trivial administrative materials are exempt from disclosure based on the rationale that the public would have no significant interest in them and the very process of releasing such materials would be an unwarranted administrative burden. Thus, routine administrative materials contained within ALJ and AC working papers are exempted from access by claimants and their representatives to the extent that the materials meet the requirements of PA exemption (d)(5) and FOIA exemption (b)(2).
FOIA exemption (b)(5) exempts from disclosure "inter-agency or intra-agency memorandums or letters which would not be available by law to a party other than an agency in litigation with the agency." 5 U.S.C. 552(b)(5). This exemption protects materials which would not be routinely discoverable in civil litigation. Portions of ALJ and AC working files containing such inter-agency or intra-agency communications are covered under this exemption.
With few exceptions, the materials in ALJ working files and AC working files contain inter-agency and intra-agency communications, such as instructions to staff, analyses, recommendations, draft decisions, and other matter exchanged during the deliberative stages of the decision-making process between deciding officials and their respective support, technical or professional staffs, and among staff members. These files may also contain communications with OGC and the Department of Justice. Thus, the working files contain materials which satisfy the description of "inter-agency or intra-agency memorandums or letters."
The (b)(5) exemption encompasses several traditional privileges commonly invoked to protect documents from discovery in litigation, including the deliberative process privilege, the attorney-client privilege and the work product privilege. It is well established that predecisional communications between Federal employees or officials that are part of the deliberative process leading to governmental decisions are protected under the deliberative process privilege. See, e.g., N.L.R.B. v. Sears, Roebuck & Co., 421 U.S. 132 (1975); Russell v. Department of the Air Force, 682 F.2d 1045 (D.C. Cir. 1982). Documents are covered by the privilege to the extent that they contain advisory opinions, recommendations, deliberations, evaluations, drafts, and similar predecisional exchanges between government employees and officials engaged in the decision-making process. This privilege is intended to: (1) encourage frank and open discussion among decision makers and persons assisting them on the matters at issue; (2) protect against disclosure of proposed decisions before they are adopted; and (3) protect against the confusion and misunderstanding that might result from disclosure of reasons or rationales that were not ultimately the grounds for an agency's action.
The ALJ hearing process and the AC review are both deliberative processes which result in final agency decisions. An ALJ's decision on a claim becomes final if the AC does not review the decision. When the AC does accept a case for review, its decision becomes the agency's final decision. The working papers exchanged during the deliberative stages of an ALJ's or the AC's decision-making process are by definition predecisional communications which are part of a deliberative process protected by the privilege.
Release of predecisional communications would be an unwarranted intrusion into the agency's deliberative process. There is a need for full and uninhibited discussion of the issues involved in Social Security cases between the decision makers and their staffs because of the complex factual situations and the sensitive nature of the process involved in weighing evidence, determining credibility and satisfying criteria established by statute, regulation, and judicial precedent. Likewise, there is a real danger that disclosure of discussions, reasons, and rationale which did not in fact constitute the basis for the agency's ultimate decision would cause confusion and misunderstanding. The purposes of the deliberative process privilege are served by protecting this type of material.
Therefore, we will invoke the deliberative process privilege when we receive requests for such predecisional communications. As required by the FOIA and judicial interpretations of that statute, however, factual material presented in these communications shall be released unless it is inextricably intertwined with exempt material and would reveal the opinions, recommendations, deliberations, and evaluations protected by the exemption.
The attorney-client and work product privileges are other traditional privileges incorporated into exemption (b)(5). The attorney-client privilege functions to protect the confidential communications of the client, including a Federal agency, and its attorney relating to a matter on which the client seeks advice. The attorney-client privilege is not limited to situations involving litigation. The communications of a client seeking legal advice and the resulting opinion provided by the attorney are generally protected. The underlying purpose of the privilege is to preserve the confidentiality of client communications and encourage full and frank attorney-client discussions.
The work product privilege covers materials created or prepared by a party's attorney or another representative of a party in anticipation of litigation. In particular, the work product privilege protects mental impressions, conclusions, opinions, legal theories and strategies.
We will invoke the attorney-client and work product privileges as appropriate when we receive requests under the FOIA and PA for confidential communications between the Agency and its attorneys, materials which set forth mental impressions, case theories or strategies and materials which request or provide legal advice.
CONCLUSION: ALJ and AC working papers, in whole or in part, may be withheld by the Social Security Administration under exemption (d)(5) of the Privacy Act and exemptions (b)(2) and (b)(5) of the Freedom of Information Act. We have determined to withhold such exempt materials from claimants and their authorized representatives because withholding serves valid and important governmental and public policy interests.
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