TN 2 (07-95)

A. POLICY — REGULATION NO. 1

Section 401.180 of Regulation No. 1 provides that SSA will comply with a court order or a subpoena if:

• Another section of Regulation No. 1 would permit the disclosure, or

• The Commissioner of Social Security is a party to the proceeding, or

• The information is necessary for due process in a criminal proceeding. Usually, only a defendant in a criminal proceeding may request disclosure based on due process. Any information that would be pertinent may be disclosed. If someone other than a defendant cites due process, consult with the Regional Chief Counsel (RCC) or OPD.

In other cases, Regulation No. 1 states, “we try to satisfy the needs of courts while preserving the confidentiality of information.” This means that SSA works with the presiding judge to provide only the minimal information necessary to the court, or provide information only in camera (in the judge's private office, off the open record of the court proceeding), so that the information does not become public knowledge as part of the court records.

NOTE: Courts may not invoke the FOIA; therefore, court orders and subpoenas are not FOIA requests.

B. POLICY — COURT ORDERS

1. PA Authority for Disclosure

Paragraph (b)(11) of the PA allows disclosure without consent “pursuant to the order of a court of competent jurisdiction.” The terms “court order” and “court of competent jurisdiction” are defined in GN 03301.002.B.

2. Whether Disclosure Is Mandatory

As with the rest of paragraph (b) of the PA, this provision is permissive, not mandatory. That is, the PA allows but does not compel SSA to comply with court orders. However, the law giving the court its authority may (or may not) make compliance by SSA mandatory. Some courts in some circumstances can compel a Federal agency to comply with its orders, while others cannot. The Regional Chief Counsel (RCC) can advise if this question becomes relevant.

3. SSA Response

Whether SSA willingly complies with a court order for disclosure depends on whether the court has competent jurisdiction (see “court of competent jurisdiction” in GN 03301.002.B.) and whether disclosure meets SSA's policies in Regulation No. 1. Only Federal courts may have jurisdiction over SSA. (See 20 C.F.R. 401.180(b) for the definition of court).

4. Notification to Individual

Paragraph (e)(8) of the PA (5 U.S.C. 552a(e)(8)) requires an agency disclosing information pursuant to a court order to make a reasonable effort to notify the individual of the disclosure.

See GN 03330.015.B.8.

C. POLICY — SUBPOENAS

A subpoena can be issued under the authority of a court or similar body (for example, a grand jury, a judicial board of inquiry, etc.), or a government agency, but a subpoena is not to be treated as a “court order” unless it is signed by a judge. Therefore, the court order exception to the PA's prohibition on disclosure without consent usually does not apply to subpoenas.

As with court orders, a subpoena may or may not be binding on SSA, depending on whether the subpoena is issued by a court of competent jurisdiction and other factors.

A subpoena can be recognized as such because it usually has the word “Subpoena” in large letters near the top of the document. SSA receives many official-looking or legal-looking documents from record copy services and the like. These should not be confused with subpoenas.

GN 03330.015.C. below discusses how to handle subpoenas which SSA or an SSA employee may receive.