Last Update: 4/12/05 (Transmittal I-1-49)
The Privacy Act applies to all records or information about an individual, maintained by an agency in a system of records, which is retrievable by the individual's name, Social Security number, or some other type of personal identifier assigned to that individual. The Privacy Act does not require access to records retrieved by some other method (e.g., by date or geographical location).
Subject to several exemptions, the Privacy Act grants an individual the right of access to his or her own records and prohibits disclosure of such records to others without the prior written request or consent of the individual.
The Privacy Act does not apply to all documents and records pertaining to individuals. It applies only to records maintained by an agency in a system of records from which information is retrieved using the name of the individual or some other type of personal identifier. The FOIA, by comparison, requires an agency to consider any request which reasonably describes the records whether or not such information is maintained in a system of records.
Attorney Fee File (60-0003)
Working File of the Appeals Council (60-0004)
Administrative Law Judge Working File on Claimant Cases (60-0005)
Storage of Hearing Records: Tape Cassettes and Audiograph Discs (60-0006)
Administrative Law Judge Docket of Claimant Cases (60-0008)
Hearings and Appeals Case Control System (60-0009)
Listing and Alphabetical Name File (Folder) of Vocational Experts and Medical Experts (60-0012)
Records of Usage of Medical Experts and Vocational Experts (60-0013)
Curricula Vitae and Professional Qualifications of Medical Experts and Resumes of Vocational (60-0014)
Hearing Office Master Docket of Claimant Cases (60-0184)
Representative Disqualification/Suspension Information System (60-0219)
NOTE:
In claims pending before OHA, OHA also responds to requests involving the Claims Folder System (60-0089) when OHA has the claim file.
Pursuant to the Privacy Act (see 5 U.S.C. § 552a(d)(1)), SSA generally grants individuals the right of access to material about themselves maintained in a system of records. This general principle is subject to exceptions including restrictions on access to:
investigatory information compiled for criminal law enforcement records that are maintained in a system of records for which SSA has published a “notice of exemption from access” in the Federal Register; or
records compiled in anticipation of a court action or formal administrative proceeding.
NOTE:
In cases in which direct access to a medical record may have an adverse effect on the individual to whom the medical record pertains, SSA regulations (20 CFR § 401.55) require the individual to designate a representative to review and explain the records to the individual before giving the records to the individual. In these cases the designated representative must give all of the records to the individual.
If access is requested for a program purpose (see 20 CFR § 402.170) and the request is a claimant's or claimant's representative's first request for access to material in an OHA system of records or the Claims Folder System:
the hearing office (HO) staff will process the request following the procedures in HALLEX I-1-4-3 G. and I-2-1-35 C.; and
the Office of Appellate Operations (OAO) staff will process the request following the procedures in HALLEX I-1-4-3 H. and I-3-0-84 C.
If access is requested for a program purpose and the claimant or claimant's representative requests two or more copies at the same time, or requests a second copy a short time after OHA or SSA previously provided a free first copy of the material to the claimant or claimant's representative, OHA will:
compute the cost of the material, using 10 cents a page for copying paper records (see 20 CFR § 401.95) and the appropriate cost for providing a second copy of a cassette recording or transcript of the hearing (if requested); and
waive the cost if the total cost does not exceed $50.
NOTE:
If the claimant or claimant's representative requests another copy of the material after some time has passed after receiving the first free copy, there is a possibility of changes or additions to the file. In that case, do not charge for the copy as a second copy.
If access is requested for a non-program purpose, OHA staff will forward the request to:
Office of Hearings and AppealsNOTE:
Section 1106(c) of the Social Security Act provides that a requester will pay the full cost of SSA's supplying information for a non-program purpose.
All third party requests, i.e., requests not made by the individual identified in the system of records, for information other than that listed in F. below must be accompanied by the identified individual's consent.
The third party must identify the material requested and provide a signed and dated consent statement from the individual. The consent statement must:
Contain the name, Social Security number, date of birth, and address of the individual whose information is to be disclosed;.
Be written, signed and dated by the individual, or someone who can consent for him/her;
Specifically authorize SSA to release records. (A consent addressed to “all third parties,” “to whom it may be concerned,” or any similarly worded consent is not acceptable. However, an authorization listing other entities is acceptable, as long as SSA is specifically named; this satisfies our requirement that the consent is addressed specifically to SSA.);
Specify the information to be disclosed. A consent authorizing the disclosure of “all records,” “entire file,” or any similar blanket request is not acceptable) For example, a consent authorizing disclosure of “my complete claim file” or “my complete disability file” is not acceptable;
State the purpose for which the information is to be disclosed (this helps SSA determines if a fee is applicable to the disclosure) ;
Specify to whom the record may be disclosed; and
State a time during which the record may be disclosed. If no time frame is given, assume the consent is for a one-time-only disclosure.
NOTE:
See F. below for exceptions to the consent requirement.
The consent of the individual identified in an OHA or SSA system of records is not required if the third party disclosure is:
to employees of the agency that maintains the record and they need the record in the performance of their duties;
required by the FOIA;
for a “routine use,” i.e., a disclosure outside SSA for a purpose compatible with the purpose for which the record was collected including disclosure to Members of Congress and their staffs on behalf of the individual identified;
to either House of Congress or to any committee, subcommittee, or joint committee and the information is on a matter within that committee's jurisdiction;
for law enforcement purposes (generally limited to crimes involving SSA programs, similar programs of other agencies, or violent crimes when the individual has been indicted or convicted);
for health and safety reasons;
NOTE:
The Privacy Act (5 U.S.C. 552a(b)(8) and SSA regulations 20 CFR § 401.160 provide that when disclosure for a health or safety reason is made to a third party, the disclosing individual must send a notice of the disclosure to the last known address of the individual whose record was disclosed.
for statistical and research activities;
to the Government Accountability Office;
to the courts, under certain circumstances; and
to accommodate other specific recipients such as the Bureau of the Census or the National Archives and Records Administration.
If consent is not required and the request is not received in writing, the receiving office will prepare a “Memorandum for the File” to document the request.
Specific HO procedures for providing access to material in an OHA system of records or the Claims Folder System related to a program purpose are provided in HALLEX I-2-1-35.
The HO or RO may provide the claimant, the claimant's representative, or a Member of Congress inquiring on behalf of the claimant access to information contained in the claim file either by permitting on-site review or by providing copies of requested documents.
NOTE:
Written consent is needed to disclosure tax return information (e.g., information provided to SSA by employers or self-employed individuals) to a Member of Congress.
When providing access or allowing disclosure of claim file material, do not allow the claim file or any other file to leave the custody and control of SSA.
While a claim is pending before an Administrative Law Judge (ALJ), we may refuse to provide an individual direct access to his or her medical records if such disclosure is likely to have an adverse effect on him or her. In such cases, we require an individual to designate a responsible person to review and explain the records to the individual before giving them to the individual. In these cases, the designated representative must give all of the records to the individual.
A HO may disclose representative material from the ALJ Working File to a claimant; and a RO may disclose material from an Attorney Fee File to a claimant. Also, the HO or RO may disclose, or provide copies of, representative material without the consent of the claimant to an attorney or non-attorney representative under the following routine use:
“to the extent necessary to dispose of . . . [a] fee request.”
If an HO or RO receives a request for information under the Privacy Act that raises a question concerning the propriety or legality of complying with the request, or which does not involve the claim file or the Attorney Fee File (for example, a request for material from the ALJ Working File - see SSR 92-1p), the HO or RO will acknowledge the request and send it to:
Office of Hearings and AppealsInclude with the referral copies of the requested information, identifying the source of the information. If the HO or RO does not have all of the requested information, the referral should identify what information is not available.
Specific OAO procedures for providing access to material in an OHA system of records or the Claims Folder System are provided in HALLEX I-3-0-84.
When a claim is pending before the Appeals Council, the hearings and appeals analyst (“analyst”) may respond to requests for records from a claim file when a request is made by the claimant or the claimant's representative. The analyst will place a copy of the response in the claim file to document SSA's action on the request.
NOTE:
If a matter is before the Appeals Council on a request for review, the claimant will have access to his or her medical records which are part of the record for decision without having to designate a representative.
If the request is for information from the Attorney Fee File or if the claim is no longer pending before the Appeals Council, the analyst will forward the request to the Office of Policy, Planning and Evaluation, FOIA/ PA Staff, Suite1608, to process.
Send requests for information under the Privacy Act that do not involve the claim file or the Attorney Fee File, or requests from individuals other than the claimant, the claimant's representative, or a Member of Congress inquiring on behalf of the claimant to the Office of Policy, Planning and Evaluation, FOIA/PA Staff, Suite 1608. Include copies of the requested material, if available. Examples of requests for information not involving the claim file or the Attorney Fee File include the following:
requests for material from the ALJ Working File; and
requests for working papers of the Appeals Council.
NOTE:
SSR 92-1p explains the general policy with regard to disclosure of materials in the ALJ Working File and the working papers of the Appeals Council.
Any Headquarters component in possession of a claim file may respond to program- related requests for information from the claim file when made by the claimant, the claimant's representative, or a Member of Congress inquiring on behalf of the claimant. Place a copy of the response in the claim file to document SSA's action on the request.
Send requests for information under the Privacy Act that do not involve the claim file, or requests from individuals other than the claimant, the claimant's representative, or a Member of Congress inquiring on behalf of the claimant to the Office of Policy, Planning and Evaluation, FOIA/PA Staff, Suite 1608. Include copies of the requested material, if available.