Availability of Information and Records to the Public

<RULE> SOCIAL SECURITY ADMINISTRATION <CFR>20 CFR Part 402</CFR> <DEPDOC>[Docket No. SSA-2021-0049]</DEPDOC> <RIN>RIN 0960-AI07</RIN> <SUBJECT>Availability of Information and Records to the Public</SUBJECT> <HD SOURCE="HED">AGENCY:</HD> Social Security Administration. <HD SOURCE="HED">ACTION:</HD> Final rule. <SUM> <HD SOURCE="HED">SUMMARY:</HD> 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. </SUM> <EFFDATE> <HD SOURCE="HED">DATES:</HD> This rule is effective January 17, 2025. </EFFDATE> <FURINF> <HD SOURCE="HED">FOR FURTHER INFORMATION CONTACT:</HD> 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 <E T="03">https://www.ssa.gov.</E> </FURINF> <SUPLINF> <HD SOURCE="HED">SUPPLEMENTARY INFORMATION:</HD> <HD SOURCE="HD1">I. Background</HD> 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 T="03">e.g.,</E> 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)  <SU>1</SU> <FTREF/> and the FOIA Improvement Act of 2016, <SU>2</SU> <FTREF/> 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. <FTNT> <SU>1</SU>  Public Law 110-175; <E T="03">https://www.congress.gov/bill/110th-congress/senate-bill/2488/text.</E> </FTNT> <FTNT> <SU>2</SU>  Public Law 114-185; <E T="03">https://www.congress.gov/bill/114th-congress/senate-bill/337/text.</E> </FTNT> On June 6, 2023, we published a notice of proposed rulemaking (NPRM) to update, reorganize, and clarify our FOIA processes for the public. <SU>3</SU> <FTREF/> 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. <SU>4</SU> <FTREF/> <FTNT> <SU>3</SU>  88 FR 36980. </FTNT> <FTNT> <SU>4</SU>  The 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; <E T="03">https://centerforplainlanguage.org/learning-training/five-steps-plain-language/.</E> 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. </FTNT> 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 <E T="03">Memorandum for Heads of Executive Departments and Agencies.</E> 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 OPEN Government Act of 2007  <SU>5</SU> <FTREF/> and the FOIA Improvement Act of 2016. <SU>6</SU> <FTREF/> <FTNT> <SU>5</SU>  88 FR at 36981. </FTNT> <FTNT> <SU>6</SU>  88 FR at 36982. </FTNT> 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. <HD SOURCE="HD2">Changes We Made From the NPRM to the Final Rule</HD> • 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 comme ━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━ Preview showing 10k of 129k characters. 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