I-1-4-3.Privacy Act

Last Update: 12/1/10 (Transmittal I-1-60)

A. General

  1. The Privacy Act applies to all records or information about an individual, maintained by an agency in a system of records (SOR), 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 or protect access to records retrieved by some other method (e.g., by date or geographical location).

  2. Subject to several exemptions, the Privacy Act grants an individual the right to access his or her own records and prohibits disclosure of such records to others without the prior written request or consent of the individual.

  3. The Privacy Act does not apply to all documents and records pertaining to individuals. It applies only to records maintained by an agency in an SOR from which information is retrieved using the name of the individual or some other type of personal identifier. The Freedom of Information Act (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.

B. List of SORs Attributed to the Office of Disability Adjudication and Review

Information concerning these SORs is available at http://www.socialsecurity.gov/foia/bluebook/toc.htm. Each SOR below is listed with its corresponding catalogue number.

  • 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 (60-0006)

  • Hearings and Appeals Case Control System (60-0009)

  • Hearing Office Tracking System of Claimant Cases (60-0010)

  • Listing and Alphabetical Name File (Folder) of Vocational Experts, Medical Experts, and Other Health Care Professional and/or Non-Health Care Professional Experts (Medicare) (60-0012)

  • Records of Usage of Medical Experts, Vocational Experts, and Other Health Care Professional and/or Non-Health Care Professional Experts (Medicare) (60-0013)

  • Curriculum Vitae and Professional Qualifications of Medical and Vocational Experts (Resumes) (60-0014)

  • Quality Review of Hearing/Appellate Process (60-0213)

  • Representative Disqualification, Suspension and Non-Recognition Information File (60-0219)

  • Appointed Representative File (60-0325)

NOTE:

The Office of Disability Adjudication and Review (ODAR) also responds to requests involving the Claims Folder System (60-0089), including an individual's written consent to disclose personal information to a third party when the receiving site (hearing office (HO), regional office (RO), or headquarters component) has the paper claim file, or a certified electronic folder (CEF) is available to the receiving site via eView. (See Administrative Message (AM)-08184, Program Operations Manual System (POMS) GN 03305.005, GN 03305.006, 20 CFR 401.100, 20 CFR 401.55(c)(2), 5 U.S.C. § 552a(b), 5 U.S.C. § 552a(d)(1), and Hearings, Appeals and Litigation Law (HALLEX) manual I-1-4-2 A.)

C. Individual's Right to Access His or Her Information in an SOR

Pursuant to the Privacy Act (see 5 U.S.C. § 552a(d)(1)), we generally grant individuals the right to access any information about themselves maintained in an SOR. This general principle is subject to exceptions including restrictions on access to:

  1. Investigative information compiled for criminal law enforcement records that are maintained in an SOR for which the Social Security Administration (SSA) has published a “notice of exemption from access” in the Federal Register; or,

  2. Records compiled in anticipation of a court action or formal administrative proceeding.

    NOTE 1:

    In cases in which direct access to medical records 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 him or her. In these cases, the designated representative must give all of the records to the individual.

    NOTE 2:

    In cases where a parent or guardian requests notification of or access to a minor's medical records, we will not give direct notification of or access to the minor's records even though the parent or guardian who requests such notification or access is authorized to act on the minor's behalf. A parent or guardian must, at the time he or she makes a request, designate a family physician or other health professional (other than a family member) to whom the records, if any, will be sent. If the parent or guardian will not designate a representative, we will decline to release the requested information. The receiving office will decline to release the information without referring the matter to SSA's Freedom of Information (FOI) Officer for a formal denial of the parent or guardian's request, as declining to release the records under these circumstances is not an initial determination subject to appeal (POMS GN 03101.070 and GN 03101.080). The designated health professional will review the records, discuss their contents with the parent or legal guardian, then must release the all the records to the parent or legal guardian (20 CFR 401.55(c))

D. Processing an Individual's Request to Access Material in ODAR's SORs and the Claims Folder System

  1. If access is requested for a program purpose (20 CFR 402.170, POMS GN 03311.005B.3.b.) and the request is the first request for access to material in an ODAR system of records or the Claims Folder System made by a claimant or a claimant's representative:

    • The HO staff will process the request following the procedures in HALLEX I-2-1-35 C.

      NOTE:

      If an HO or RO receives a request for the Administrative Law Judge Working File on Claimant Cases, the HO or RO must send scanned portable document format (PDF) copies to the Audit Liaison Staff (ALS) via email (¦¦¦ODAR OEOHR FOIA), including a scan of the incoming request. If the HO or RO does not have all of the requested information, the email to ALS should identify what information is not available. ALS will refer these materials to SSA's FOI Officer for a decision on disclosure (in accordance with Social Security Ruling (SSR) 92-1p. If there are any questions, HO management may contact their ODAR RO. If the question cannot be resolved at the regional level, the ODAR RO management team may contact the Office of Privacy and Disclosure (OPD) through ALS.

    • The Office of Appellate Operations (OAO) staff should follow the procedures in HALLEX I-3-0-84 and I-1-4-3 H, and refer non-program requests from Members of Congress (MC) to the Congressional and Public Affairs Branch (CPAB) and requests from claimants and third parties, other than MCs, to ALS.

  2. 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 a free first copy of the material was provided to the claimant or the claimant's representative:

    • Compute the cost of the material, using 10 cents per page for copying paper records (see 20 CFR 401.95) and the appropriate cost for providing a second copy of a 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 the 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.

E. Third Party Disclosure — Request for Records About an Individual Identified in an ODAR SOR or the Claims Folder System — Consent of the Individual Identified Is Required

  1. All third party requests for information—i.e., requests not made by the individual identified in the system of records—other than those listed in F below must be accompanied by the identified individual's consent. (See SSA's preferred form and its instructions at SSA-3288).

  2. 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 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 concern,” 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 determine 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.

F. Third Party Disclosure — Request for Records About an Individual Identified in an ODAR System of Records or the Claims Folder System — Consent of the Individual Identified Is Not Required

  1. The consent of the individual identified in an ODAR or other SSA SOR is not required if the third party disclosure is:

    • To employees of the agency that maintains the record, and the employees need the record to perform their duties;

    • Required by 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 disclosures that may be made to third party contacts to assist in administering SSA programs in accordance with POMS GN 03316.065A.5. and 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 involves 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 courts, under certain circumstances; and,

    • To accommodate other specific recipients such as the Bureau of the Census or the National Archives and Records Administration.

  2. 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.

G. HO and RO Procedures

  1. HO procedures for providing access to material in an ODAR SOR or the Claims Folder System related to a program purpose are provided in HALLEX I-2-1-35 C. (See also the NOTE in I-1-4-3 D on SSR 92-1p).

  2. The HO or RO may provide the claimant, the claimant's representative, or an MC inquiring on behalf of the claimant access to information contained in the claim file either by permitting on-site review or by providing a disk or copies of requested documents.

    NOTE:

    We must have written consent to disclose tax return information (e.g., information provided to SSA by employers or self-employed individuals) to an MC.

  3. When providing access or allowing disclosure of claim file material, do not allow a paper claim file or any other original paper file (as opposed to providing copies, including copies on a disk in accordance with HALLEX I-1-4-2 B.2.) to leave the custody and control of SSA.

  4. 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. (See also the NOTE in HALLEX I-1-4-3. C.)

  5. 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 “to the extent necessary to dispose of . . . [a] fee request.”

    NOTE:

    An RO may also disclose material from an Attorney Fee File to a claimant. If material is requested from the Administrative Law Judge Working File on Claimant Cases, do not release it; instead, follow HALLEX I-1-4-3 D.1. (See SSR 92-1p.)

  6. If a request for information under the Privacy Act raises a question concerning the propriety or legality of complying with the request, including a question involving the claim file or the Attorney Fee File, HO management teams may contact their respective ODAR RO. If the question cannot be resolved at the regional level, the ODAR RO management teams may contact the OPD through ALS.

H. Office of Appellate Operations (OAO) Procedures

  1. OAO procedures for providing access to material in an ODAR SOR or the Claims Folder System are provided in HALLEX I-3-0-84. OAO should refer requests from MCs to CPAB, and requests from claimants and third parties, other than MCs, to ALS.

  2. When a claim is under the jurisdiction of the Appeals Council (AC), the AC or other OAO management will determine at its discretion whether the hearings and appeals analyst or other OAO staff will respond to requests for records from a claim file when a request is made by the claimant or the claimant's representative. The designated OAO staff member will place a copy of the response in the claim file to document SSA's action on the request.

  3. If the request is for information from the Attorney Fee File or the Working File of the Appeals Council (see SSR 92-1p), or if the claim is no longer under the jurisdiction of the AC, OAO staff will refer the request to the OAO front office, Suite 1400, One Skyline Tower, 5107 Leesburg Pike, Falls Church, VA 22041 — ATTN: Appeals Officer for the Executive Director, OAO. The OAO front office will review the request and take appropriate action, including, as warranted, consulting with ALS for possible referral to OPD for decisions on disclosure.

I. Access Procedures for Other ODAR Headquarters (HQ) Components

  1. Any ODAR HQ component in possession of a claim file (or with access to the CEF) may respond to program-related requests for information from the claim file when made by the claimant, the claimant's representative, or an MC inquiring on behalf of the claimant. (ODAR HQ components must consult first with CPAB on requests from MCs). Place a copy of the response in the claim file to document SSA's action on the request.

  2. With the exception of the instructions specific to OAO in HALLEX I-3-0-84 and I-1-4-3 H, and the requirement to consult with CPAB in item 1 in this subsection, other ODAR HQ components should consult with ALS to determine how to handle requests for information under the Privacy Act that do not involve the claim file, or requests from individuals other than the claimant or the claimant's representative.