[Federal Register Volume 62, Number 157 (Thursday, August 14, 1997)]
[Proposed Rules]
[Pages 43489-43492]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 97-21546]
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SOCIAL SECURITY ADMINISTRATION
20 CFR Part 402
RIN 0960-AE68
Electronic Freedom of Information Act Amendments of 1996
AGENCY: Social Security Administration.
ACTION: Proposed rules.
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SUMMARY: These rules are proposed to reflect the changes made by the
Electronic Freedom of Information Act Amendments (EFOIA) of 1996, that
give the public access to government information and records maintained
in an electronic format, provide for expedited processing of certain
requests, establish ``electronic reading rooms,'' eliminate an agency
backlog of work as a justification for delay in processing requests,
require redacted material to be estimated or indicated in an agency's
response, and require an agency reference guide on FOIA to be made
available.
DATES: To be sure that your comments are considered, we must receive
them no later than September 15, 1997.
ADDRESSES: Comments should be submitted in writing to the Acting
Commissioner of Social Security, P.O. Box 1585, Baltimore, MD 21235,
sent by telefax to (410) 966-2830, sent by E-mail to
regulations@ssa.gov'' or delivered to 3-B-1 Operations Building, 6401
Security Boulevard, Baltimore, MD 21235, between 8:00 a.m. and 4:30
p.m. on regular business days.
The electronic file of this document is available on the Federal
Bulletin Board (FBB) at 9 a.m. on the date of publication in the
Federal Register. To download the file, modem dial (202) 512-1387. The
FBB instructions will explain how to download the file and the fee.
This file is in WordPerfect format and will remain on the FBB during
the comment period.
FOR FURTHER INFORMATION CONTACT: Henry D. Lerner, Legal Assistant, 3-B-
1 Operations Building, 6401 Security Boulevard, Baltimore, MD 21235,
(410) 965-1762 for information about these rules.
SUPPLEMENTARY INFORMATION: These proposed rules will revise our
existing regulations to reflect the provisions of Public Law 104-231,
the Electronic Freedom of Information Act Amendments of 1996. Pub. L.
No. 104-231 amended 5 U.S.C. 552, popularly known as the Freedom of
Information Act (FOIA), to provide public access to information in an
electronic format, provide for expedited processing of certain
requests, establish ``electronic reading rooms,'' eliminate an agency
backlog of work as a justification for delay in processing requests,
require redacted material to be estimated or indicated in an agency's
response, and require an agency reference guide on FOIA to be made
available. The proposed rules will also make technical changes to
related rules.
According to the new law, the term ``record'' encompasses
information, subject to the requirements of the FOIA, when maintained
in any format, including an electronic format. The category of
``reading room'' records, at 5 U.S.C. 552(a)(2), is expanded to include
records that the agency discloses in response to a FOIA request that
have become, or are likely to become, the subject of future requests.
An index of those records that are subject to multiple requests must be
prepared and made available by computer telecommunications by December
31, 1999. Furthermore, agencies must create an ``electronic reading
room'' to contain records created after November 1, 1996 that are
required to be made available under 5 U.S.C. 552(a)(2). Additionally,
agencies must make reasonable efforts to search for records, even when
information is maintained in an electronic database, unless such
efforts would significantly interfere with the operation of the
agency's automated information system. If a requester requests a record
in a particular format, agencies must attempt to provide the record in
that format if the record is readily reproducible in such format.
The general period for responding to requests has been changed from
10 days to 20 days. Moreover, multi-track processing may be offered as
a way to provide more timely responses. Agencies and requesters may
discuss alternative time frames to process requests, or modifications
to the requests, when the general 20-day time for responding cannot be
met. Expedited processing of requests must be done when there is a
compelling need for the records. ``Compelling need'' means that the
failure to obtain the records on an expedited basis could reasonably be
expected to pose an imminent threat to the life or physical safety of
an individual, or when a request is made by a person primarily engaged
in disseminating information (e.g., the news media), and there is an
urgency to inform the public concerning actual or alleged Federal
Government activity.
The amount of information deleted on a record must be indicated,
unless doing so would harm an interest protected by an exemption; and,
if technically feasible, the indication shall be at the place in the
record where the deletion is made. If whole pages or documents are
withheld, an estimate of the volume of material withheld must be
provided to the requester, unless doing so would harm an interest
protected by an exemption. Furthermore, a guide for requesting records,
to include an index and description of major record systems, must be
made available to the public.
The definition of ``record'' in Sec. 402.30 will be revised to
reflect the provisions of section 3 of Public Law 104-231 to include
information stored in an electronic format, and the meaning of
``record'' in the Records Disposal Act, 44 U.S.C. 3301, as well as the
Supreme Court's decision in U.S. Dept. of Justice versus Tax Analysts,
492 U.S. 136 (1989).
Section 402.35 will be revised to reflect the provisions of section
4 of Public Law 104-231 concerning availability of records, extent of
deletions, and a general index of records.
Section 402.40 will be revised to indicate that SSA Publications on
CD-ROM are available for purchase.
Section 402.45 will be revised to add a new category to reading
room records. These are records which ``the agency determines have
become or are likely to become the subject of subsequent requests for
substantially the same records.'' Also, we will provide an electronic
index for this category of records as reflected in section 4 of the
EFOIA amendments.
[[Page 43490]]
Section 402.100(b) will be revised to reflect the decision in Dept.
of Justice v. Reporters Committee for Freedom of the Press, 489 U.S.
749 (1989) concerning whether personal information may be released. In
that case, the Court stated that the only public interest to be
considered is whether disclosure would shed light on how an agency
performs its statutory duties, and that the identity of the requester
or purpose for which the information is requested is not relevant.
Section 402.115, which explains the deletion of personally
identifying details in requested records, and Sec. 402.120, which
explains the creation of records, will be moved for ease of reference
to Sec. 402.145, which explains what we are required to do when
responding to a request for information.
Section 402.130 will be revised by adding language about the
electronic availability of a guide/handbook on how to request
information from the Social Security Administration (SSA). We also will
describe how the public can request FOIA records.
Section 402.140 will be revised to include multi-track processing,
requests for expedited processing and the changes in time limits as
provided in sections 7 and 8 of the EFOIA amendments. The EFOIA
amendments extended the general period of 10 days for determining
whether to comply with a request to 20 days.
The EFOIA amendments encourage agencies which experience
difficulties in meeting FOIA's time limits to experiment with multi-
track processing. Before the enactment of the EFOIA amendments, due to
increased volumes of FOIA requests and staff losses, we experimented
with various processes to reduce backlogs, among them multi-tracking.
The results are encouraging and we plan to institute multi-tracking
procedures. We plan on establishing four tracks depending on the ease
of providing an answer:
Track 1--Requests that can be answered with readily
available records or information. These are the fastest to process.
Track 2--Requests where we need records or information
from other offices throughout the Agency, but we do not expect that the
decision on disclosure will be as time consuming as for requests in
Track 3.
Track 3--Requests which require a substantive decision or
input from another office or agency and a considerable amount of time
will be needed for that, or the request is complicated or involves a
large number of records. Usually, these cases will take the longest to
process.
Track 4--Requests that will be expedited.
The EFOIA requires agencies to promulgate regulations providing
expedited access for requesters who show a ``compelling need'' for a
speedy response. The EFOIA describes compelling need as when there is
``an imminent threat to the life or physical safety of an individual,''
or when it is a request from a member of the media, and there is an
``urgency to inform the public concerning actual or alleged Federal
Government activity.''
Section 402.145 will be revised to include new provisions on
searching for, retrieving, and furnishing records in electronic
formats, and will describe how deletions on records will be indicated.
Section 402.150 will be revised to cross-refer to Sec. 402.45 to
describe the indexing of records for the new category of reading room
records. This describes our procedures for releasing records for which
we receive multiple requests or expect to receive multiple requests.
Section 402.160 will be revised to correct the reference to
Sec. 402.145 (b) and (c) and to clarify these paragraphs. These
references should read Sec. 402.155 (b) and (c).
Justification for 30-Day Public Comment Period
When required, we follow the notice of proposed rulemaking (NPRM)
and public comment procedures specified in the Administrative Procedure
Act (APA), 5 U.S.C. 553 and guidelines in Executive Order 12866, 58 FR
51735 (September 30, 1993). We have determined that good cause exists
for a 30-day comment period because this NPRM is primarily implementing
the EFOIA legislation, and the 30-day time frame will provide the
public with a meaningful opportunity to comment, and issuing the new
rules as soon as possible would help our agency comply with the
legislative provisions of the EFOIA sooner than would a 60-day comment
period, which is to the benefit of the public.
Executive Order No. 12866
We have consulted with the Office of Management and Budget (OMB)
and determined that these rules do not meet the criteria for a
significant regulatory action under Executive Order 12866. Thus, they
were not subject to OMB review.
Regulatory Flexibility Act
We certify that these rules will not have a significant economic
impact on a substantial number of small entities since these rules
affect only individuals. Therefore, a regulatory flexibility analysis
as provided in the Regulatory Flexibility Act, as amended, is not
required.
Paperwork Reduction Act
These regulations will impose no additional reporting and
recordkeeping requirements subject to OMB clearance.
(Catalog of Federal Domestic Assistance Program Nos. 96.001 Social
Security-Disability Insurance; 96.002 Social Security-Retirement
Insurance; 96.004 Social Security-Survivors Insurance; 96.006
Supplemental Security Income.)
List of Subjects in 20 CFR Part 402
Administrative practice and procedure, Archives and records,
Freedom of information.
Dated: July 28, 1997.
John J. Callahan,
Acting Commissioner of Social Security.
For the reasons set out in the preamble, we are proposing to amend
part 402 of 20 CFR chapter III as follows:
PART 402--AVAILABILITY OF INFORMATION AND RECORDS TO THE PUBLIC
1. The authority citation for 20 CFR part 402 continues to read as
follows:
Authority: Secs. 205, 702(a)(5), and 1106 of the Social Security
Act; (42 U.S.C. 405, 902(a)(5), and 1306); Section 413(b) of the
Federal Mine Safety and Health Act of 1977 (30 U.S.C. 923b), 5
U.S.C. 552 and 552a; 8 U.S.C. 1360; 18 U.S.C. 1905; 26 U.S.C. 6103;
31 U.S.C. 9701; E.O. 12600, 52 FR 23781, 3 CFR, 1987 Comp., p. 235.
2. Section 402.30 is amended by revising the definition of
``records'' to read as follows:
Sec. 402.30 Definitions.
* * * * *
Records means any information maintained by an agency, regardless
of forms or characteristics, that is made or received in connection
with official business. This includes handwritten, typed, or printed
documents (such as memoranda, books, brochures, studies, writings,
drafts, letters, transcripts, and minutes) and material in other forms,
such as punchcards; magnetic tapes; cards; computer discs or other
electronic formats; paper tapes; audio or video recordings; maps;
photographs; slides; microfilm; and motion pictures. It does not
include objects or articles such as exhibits, models, equipment, and
duplication machines, audiovisual processing materials, or computer
software. It does not include personal records of an employee, or
books, magazines, pamphlets, or other
[[Page 43491]]
reference material in formally organized and officially designated SSA
libraries, where such materials are available under the rules of the
particular library.
* * * * *
3. Section 402.35 is amended by adding new paragraph (d) to read as
follows:
Sec. 402.35 Publication.
* * * * *
(d) Availability by telecommunications. To the extent practicable,
we will make available by means of computer telecommunications the
indices and other records that are available for inspection.
4. Section 402.40 is amended by adding new paragraph (h) to read as
follows:
Sec. 402.40 Publications for sale.
* * * * *
(h) SSA Publications on CD-ROM.
5. Section 402.45 is amended by adding new paragraph (d) to read as
follows:
Sec. 402.45 Availability of records.
* * * * *
(d) Electronic reading room. We will prepare an index of records
which have become or are likely to become the subject of subsequent
requests. The index, and, to the extent practicable, the records will
be made available on the Internet or by other computer
telecommunications means.
6. Section 402.100 is amended by revising the heading and paragraph
(b) to read as follows:
Sec. 402.100 Exemption six: Clearly unwarranted invasion of personal
privacy.
* * * * *
(b) Balancing test. In deciding whether to release records to you
that contain personal or private information about someone else, we
weigh the foreseeable harm of invading a person's privacy against the
public interest in disclosure. In determining whether disclosure would
be in the public interest, we will consider whether disclosure of the
requested information would shed light on how a Government agency
performs its statutory duties. However, in our evaluation of requests
for records we attempt to guard against the release of information that
might involve a violation of personal privacy because of a requester
being able to ``read between the lines'' or piece together items that
would constitute information that normally would be exempt from
mandatory disclosure under Exemption Six.
* * * * *
Sec. 402.115 [Removed]
7. Section 402.115 is removed.
Sec. 402.120 [Removed]
8. Section 402.120 is removed.
Sec. 402.130 [Removed]
9. Section 402.130 is revised to read as follows:
Sec. 402.130 How to request a record.
You may request a record in person or by mail or by electronic
telecommunications. To the extent practicable, and in the future, we
will attempt to provide access for requests by telephone, fax,
Internet, and e-mail. Any request should reasonably describe the record
you want. If you have detailed information which would assist us in
identifying that record, please submit it with your request. We may
charge fees for some requests (Secs. 402.145-402.175 explain our fees).
You should identify the request as a Freedom of Information Act request
and mark the outside of any envelope used to submit your request as a
``Freedom of Information Request.'' The staff at any Social Security
office can help you prepare this request.
10. Section 402.140 is revised to read as follows:
Sec. 402.140 How a request for a record is processed.
(a) In general, we will make a determination as to whether a
requested record will be provided within 20 days (excepting Saturdays,
Sundays, and legal public holidays) after receipt of a request by the
appropriate official (see Sec. 402.135). This 20-day period may be
extended in unusual circumstances by written notice to you, explaining
why we need additional time, and the extension may be for up to 10
additional working days when one or more of the following situations
exist:
(b) If we cannot process your request within 10 additional days, we
will notify you and provide you an opportunity to limit the scope of
the request so that it may be processed within the additional 10 days,
or we will provide you with an opportunity to arrange with us an
alternative time frame for processing the request, or for processing a
modified request.
(c) Multi-tracking procedures. We will establish four tracks for
handling requests and the track to which a request is assigned will
depend on the nature of the request and the estimated processing time:
(1) Track 1. Requests that can be answered with readily available
records or information. These are the fastest to process.
(2) Track 2. Requests where we need records or information from
other offices throughout the Agency but we do not expect that the
decision on disclosure will be as time consuming as for requests in
Track 3.
(3) Track 3. Requests which require a decision or input from
another office or agency and a considerable amount of time will be
needed for that, or the request is complicated or involves a large
number of records. Usually, these cases will take the longest to
process.
(4) Track 4. Requests that will be expedited.
(d) We will provide for expedited access for requesters who show a
``compelling need'' for a speedy response. The EFOIA describes
compelling need as when the failure to obtain the records on an
expedited basis could reasonably be expected to pose ``an imminent
threat to the life or physical safety of an individual,'' or when the
request is from a person primarily engaged in disseminating information
(such as a member of the news media), and there is an ``urgency to
inform the public concerning actual or alleged Federal Government
activity.'' We also will expedite processing of a request if the
requester explains in detail to our satisfaction that a prompt response
is needed because the requester may be denied a legal right, benefit,
or remedy without the requested information, and that it cannot be
obtained elsewhere in a reasonable amount of time. We will respond
within 10 days to a request for expedited processing and, if we decide
to grant expedited processing, we will then notify you of our decision
whether to disclose the records requested or not as soon as
practicable.
11. Section 402.145 is revised to read as follows:
Sec. 402.145 Responding to your request.
(a) Retrieving records. We are required to furnish copies of
records only when they are in our possession or we can retrieve them
from storage. We will make reasonable efforts to search for records
manually or by automated means, including any information stored in an
electronic form or format, except when such efforts would significantly
interfere with the operation of our automated information system. If we
have stored the records you want in the National Archives or another
storage center, we will retrieve and review them for possible
disclosure. However, the Federal Government destroys many old records,
so sometimes it is impossible to fill requests. Various laws,
regulations, and manuals give the time periods for keeping records
before they may be destroyed. For example, there is information about
retention of records
[[Page 43492]]
in the Records Disposal Act of 1944, 44 U.S.C. 3301 through 3314; the
Federal Property Management Regulations, 41 CFR 101-11.4; and the
General Records Schedules of the National Archives and Records
Administration.
(b) Furnishing records. We will furnish copies only of records that
we have or can retrieve. We are not required to create new records or
to perform research for you. We may decide to conserve Government
resources and at the same time supply the records you need by
consolidating information from various records rather than copying them
all. For instance, we could extract sections from various similar
records instead of providing repetitious information. We generally will
furnish only one copy of a record. We will make reasonable efforts to
provide the records in the form or format you request if the record is
readily reproducible in that form or format.
(c) Deletions. When we publish or otherwise make available any
record, we may delete information that is exempt from disclosure. For
example, in an opinion or order, statement of policy, or other record
which relates to a private party or parties, the name or names and
other identifying details may be deleted. When technically feasible, we
will indicate the extent of deletions on the portion of the record that
is released or published at the place of the deletion unless including
that indication would harm an interest protected by an exemption. If we
deny a request, in whole or in part, we will make a reasonable effort
to estimate the volume of any requested matter that is not disclosed,
unless such an estimate would harm an interest protected by an
exemption.
(d) Creation of records. We are not required to create new records
merely to satisfy a request. However, we will search manually or by
automated means to locate information that is responsive to the
request. If extensive computer programming is needed to respond to a
request, we may decline to commit such resources, or if we agree to do
so, we may charge you for the reasonable cost of doing so. We do not
mean that we will never help you get information that does not already
exist in our records. However, diverting staff and equipment from our
other responsibilities may not always be possible.
12. Section 402.150 is amended by revising paragraph (a), removing
paragraph (b), and redesignating paragraph (c) as new paragraph (b) to
read as follows:
Sec. 402.150 Release of records.
(a) Records previously released. If we have released a record, or a
part of a record, to others in the past, we will ordinarily release it
to you also. However, we will not release it to you if a statute
forbids this disclosure, and we will not necessarily release it to you
if an exemption applies in your situation and it did not apply, or
applied differently, in the previous situation(s) or if the previous
release was unauthorized. See Sec. 402.45(d) regarding records in
electronic reading rooms.
* * * * *
13. Section 402.160 is amended by revising paragraphs (b) and (c)
to read as follows:
Sec. 402.160 Fees to be charged--general provisions.
* * * * *
(b) If we are not charging you for the first two hours of search
time, under paragraph (c) of Sec. 402.155, and those two hours are
spent on a computer search, then the two free hours are the first two
hours of the time needed to access the information in the computer.
(c) If we are not charging you for the first 100 pages of
duplication, under paragraph (b) or (c) of Sec. 402.155, then those 100
pages are the first 100 pages of photocopies of standard size pages, or
the first 100 pages of computer printout.
* * * * *
[FR Doc. 97-21546 Filed 8-13-97; 8:45 am]
BILLING CODE 4190-29-P
