[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 
``[email protected]'' 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