The federal government’s disability fund is set to run a $75 billion cash-flow deficit this year, and the program’s own judges are reportedly responsible for running it into the ground. Congressional reports have highlighted allegations of disability judges’ rubber-stamping cases, snoozing on the job, sexually harassing colleagues, and colluding with corrupt lawyers — but the Social Security Administration continues to be more concerned with shielding questionable judges from much-needed scrutiny that it is with protecting the disability fund’s financial integrity.
In August, on behalf of National Review Online and the Franklin Center, I submitted a Freedom of Information Act request to the SSA, asking for correspondence that could potentially reveal misconduct, conflict of interests, or other worrisome, illegal, or unethical behavior on the part of some of the top rubber-stamping disability judges identified by the House Oversight Committee. But the SSA refused to offer even the most minimal response, telling me it “can neither confirm nor deny the existence of such records.”
The SSA’s justifications for this nonresponse are quite simply hogwash, and we’re fighting back, submitting an appeal today, as we attempt to investigate this issue affecting millions of Americans, and billions of dollars.
The SSA claims the information I’ve sought would unduly violate disability judges’ privacy, and that these records “would not shed light on how the agency performs its statutory duties.”
But these records don’t have anything to do with judges’ private lives. Instead, they are concerned with how judges fulfill their public duties.
Agencies are supposed to err on the side of disclosure, and there’s ample precedent for releasing this information. For example, in Providence Journal Co. v. United States Dep’t of Army, the court established that “the privacy interests of federal employees are diminished due to the public interest” — especially when, like the disability judges, “the federal employee in question holds a high level position.”
The SSA was also quick to invoke the Privacy Act, even though the statute itself explicitly states that it can’t be used to withhold records considered public under the Freedom of Information Act, like the ones I’m seeking.
But even if concerns about judges’ privacy were valid, the public interest is so substantial that the SSA should clearly disclose the records anyway. Already, 10 million Americans receive Social Security disability benefits, and the program’s own trustees expect it to be insolvent by 2016. Truly deserving beneficiaries rely on this program to meet their basic needs, and judges who abuse the system are putting these vulnerable Americans in financial peril.
To justify its refusal to tell me if the records I’m seeking even exist, the SSA has made a so-called Glomar Response, a Cold War–era response to FOIA requests that was first asserted by the Central Intelligence Agency.
Back then, reporters wanted to pin down a story about the Glomar Explorer, a vessel built to secretly retrieve a sunken Soviet submarine. So the CIA’s lawyers developed this response because, as ABC News aptly explained, “by stating that the agency could ‘neither confirm nor deny’ the existence of the covert program, the CIA avoided saying the program did not exist, which would have been a lie, and simultaneously it avoided revealing the existence of the program by confirming it, which would have tipped off the Soviet Union.”
The SSA’s use of the Glomar Response to withhold records seems outrageous, considering its origins in the national-security context. We’re not looking for spy records that could compromise national security; we’re trying to find out if judges paid by the taxpayers have committed crimes or misconduct on the taxpayers’ time that could jeopardize the financial standing of a public program. (Though, of course, if SSA judges’ behavior does constitute a national-security threat, that would be one heck of a story — one whose disclosure would even more urgently serve the public interest.)
We look forward to seeing whether the SSA decides to be more cooperative going forward, but our hopes aren’t high. In the past, it has taken months to get the agency to issue even the most limited of responses. Our phone calls about our FOIA requests about disability judges went unreturned, and on one instance, we were even told to stop calling, as our efforts might inhibit the SSA’s ability to process other, unrelated FOIA requests from other requesters.
Meanwhile, in refusing to submit to scrutiny, the SSA is putting the interests of its own judges, however questionable, before those of disabled Americans.
— Jillian Kay Melchior writes for National Review as a Thomas L. Rhodes Fellow for the Franklin Center. She is also a senior fellow at the Independent Women’s Forum.