TN 2 (07-95)

A. INTRODUCTION

The procedure to follow when handling a court order or subpoena depends on whether the information requested is:

• Personal program information (i.e., personal information about claimants or number holders (NHs)), which is subject to Regulation No. 1 (20 CFR, Part 401), or

• Nonpersonal information or SSA personnel information, which is subject to the HHS disclosure regulation, 45 CFR, Part 2. (These cases are sometimes referred to as “Touhy Amendment Cases.”)

This section sets out the policy and procedures for handling court orders and subpoenas for personal or nonpersonal information subject to either of the above regulations.

B. PROCEDURE

1. Personal Program Information — General

a. FO, TSC, or PSC Manager Action

If you or another SSA staff member are served with a subpoena, telephone the ARC, POS and give the following information:

• Time and place of the court appearance;

• Name and telephone number either of the attorney who caused the subpoena to be issued or of the presiding judge; and

• Background of the request; i.e., what is requested and whether the subject individual has consented to the disclosure.

• What SSA has in its records and where any claims folder are located (based on systems queries).

b. Obtaining Legal Advice.

• In the office of the ARC, POS, consult the RCC.

• In the Office of Disability, contact the Disability Special Procedures Branch, 3-A-10 Operations Building.

• In other CO components, contact OGC.

2. Regulation No. 1 Permits Disclosure

Inform the ARC/POS by telephone that you have received the court order or subpoena. The ARC/POS will consult with the office of the RCC. If some provision of Regulation No. 1 other than section 401.340 (concerning court orders) would permit the requested disclosure, comply with the court order.

EXAMPLE: SSA receives a court order ordering us to disclose a person's benefit rate, in a case brought against the beneficiary by a State welfare agency for fraud. Since we would disclose that information directly to the agency (an income-maintenance agency) if asked, we should make the same disclosure to the court.

NOTE: You can comply with requests for personal information which generally can be disclosed under provisions in GN 03313.000 and GN 03314.000 or Regulations No. 1 without requiring the presentation of a subpoena or court order.

3. Regulation No. 1 Does Not Permit Disclosure

If no provision of Regulation No. 1 (other than section 401.340) would permit the requested disclosure, consult the RCC (through the ARC/POS) regarding how to proceed. (If the RCC feels it is appropriate, he/she can take steps to have the court order vacated (annulled), or can make other arrangements with the court.)

NOTE: The RCC can base refusal to comply on section 1106(a) of the Social Security Act (42 U.S.C. 1306(a)) and Regulation No. 1 (20 CFR, Part 401). Although the FOIA does not apply to courts, Regulation No. 1 is based on the FOIA principle of avoiding a “clearly unwarranted invasion of personal privacy.” If a specific statutory provision prohibits disclosure, the RCC can also cite that; for example, section 6103 of the Internal Revenue Code, 26 U.S.C. 6103.

EXAMPLE: SSA receives a court order from a court of competent jurisdiction asking us to identify the person to whom a particular SSN is assigned. SSA does not consider this an appropriate disclosure in this case, under the requirements in GN 03330.005.1. We would attempt to have the court order vacated.

4. Refusal to Disclose

In the field, if the ARC/POS or the PSC Director advises you to refuse to disclose personal information:

• Respectfully refuse to produce or discuss the requested information;

• Inform the court that disclosure is prohibited by section 1106(a) of the Social Security Act (42 U.S.C. 1306(a)), Regulation No. 1 (20 CFR, Part 401), and any other applicable statutes;

• Give the court details as to what FOIA principle would be violated by disclosure. (The ARC, POS, the PSC Director, the RCC, or OGC will be able to advise you in that regard.)

5. Court Insists on Disclosure

If, after being told that the information subpoenaed cannot be disclosed under section 1106(a) and Regulation No. 1, the court nevertheless directs you to supply the information, then:

• Respectfully refuse to comply with the directions of the court, even if the court threatens to issue a contempt order;

• Ask for a continuance so that you can obtain counsel; and

• Have the ARC, POS contact the RCC for help.

6. Copying and Releasing Original Documents

• Allow if applicable, properly authorized individuals to review original documents on SSA office premises. See GN 03360.020 for instructions on photocopying.

• Do not send original files, medical reports, etc., to an outside photocopy service or other third party (as some subpoenas request). Release original records only to other SSA employees or offices.

7. Documentation and PA Accounting

See GN 03360.030 concerning the PA requirement for accounting for disclosures made pursuant to a court order or subpoena.

Whether or not a disclosure is made, keep a copy of any court order or subpoena received, any related correspondence, and reports of telephone conversations in:

• The claim folder (if it is in the FO), or

• The administrative files, under file code AM-24, for a period of at least 6 months.

8. Notification to Individual

When personal information has been disclosed to a court pursuant to a subpoena or court order, inform the individual, if possible, that the disclosure has been made.

C. POLICY

When the United States is not a party in a legal proceeding, HHS regulations generally prohibit testimony by employees or production of any agency documents involving nonpersonal information (such as instructional material) or personnel information about SSA employees. However, there are some exceptions, as explained in 2. below.

1. Types of Information

Disclosure of the following types of information is governed by HHS regulation rather than by Regulation No. 1:

• Regulations, rulings, Program Operations Manual System (POMS), Administrative Instructions Manual System (AIMS), and other nonpersonal directives and guidelines;

• Records relating to procurements and grants;

• Other records or documents relating to administration or management which do not contain personally identifiable information.

• Personnel records of SSA employees and other records pertaining to personnel administration.

2. Rule and Exceptions

The regulation prohibits testimony or production of agency documents in a legal proceeding to which the United States is not a party. This prohibition does not apply in the following situations:

• The Commissioner of Social Security or designee, after consulting with OGC, decides that compliance with the request would serve an agency objective;

• Congress requests or subpoenas testimony or documents; or

• An employee makes a court appearance in a private capacity (such as in cases arising out of traffic accidents, nonprogram crimes, or domestic relations).

An employee may also appear as an expert witness in connection with professional and consultative services as an approved outside activity. In this situation the employee must state for the record that the testimony represents his or her own views and not necessarily the official position of the agency.

D. PROCESS

The process for handling nonpersonal and personal information requests is given below.

1. Subpoenas and Requests for Voluntary Testimony

a. Handling the Request.

When an SSA office receives a subpoena or a request for voluntary testimony, the receiving office contacts the ARC/POS, who then consults with the RCC (in the field) or OGC (in CO). Counsel will review the request and will consider:

• The nature of the testimony requested;

• Whether the information requested is available by any other means; and

• Whether the testimony would be in the interest of the agency or the Federal government.

The receiving office will be informed whether the agency has decided to comply or not with the subpoena or request pursuant to an exception to the HHS regulation listed in C.2. above.

b. Responding to the Request.

If the agency denies approval to comply with the subpoena or court order for testimony, or if there has been no response by the return date, the subpoenaed SSA employee:

• Appears at the stated time and place, unless otherwise advised by the RCC in the field or OGC in CO;

• Provides a copy of the regulations; and

• Respectfully declines to testify or produce documents, based on the regulations.

2. Subpoenas Duces Tecum

A subpoena duces tecum is a subpoena which requires a person to appear in court and to bring a document or other piece of evidence. A subpoena duces tecum for SSA records is deemed a request for records under the FOIA.

When an SSA office or component receives such a subpoena, that office contacts the ARC/POS, who then consults with the RCC (in the field) or OGC (in CO). Unless otherwise advised, the subpoenaed employee appears in court, but respectfully declines to produce the record because the request will be handled by the agency procedures and rules established under the FOIA.