GN DEN03330.015 Guidelines for Handling Subpoenas and Court Orders (TN 05-01 -- 01/2005)
SSA Field Offices (FOs) and Disability Determination Services (DDSs) are frequently served with subpoenas or court orders that purportedly require SSA and DDS employees and medical consultants to produce and possibly testify about information concerning a specific number holder (NH) contained in the agency's system of records or, less often, to testify about their observations of a claimant or about SSA programs.
Subpoenas requesting the personnel records of SSA/DDS employees are outside the scope of this transmittal. Such subpoenas should be faxed immediately to the Center for Human Resources in the Chicago Regional Office (fax: 312-575-6424) Attention: Elsa S. Cruz, Human Resources Director.
The difference between subpoenas and court orders.
A subpoena is usually issued by an attorney, or by the clerk of a court at an attorney's request. When documents are requested, the subpoena is usually designated as a "subpoena duces tecum." Subpoenas issued to SSA FOs or DDSs usually direct a "custodian of documents" or a specific employee to produce records at a deposition in an attorney's office or in court, and perhaps to provide testimony regarding those records. Less often, the subpoena will only direct the employee to testify regarding general SSA program matters or the employee's knowledge of, or observations of a NH.
Usually, a deposition is simply a records deposition, in which the SSA employee states under oath that the records produced are from the file of the NH. An attorney may specify in a cover letter accompanying the subpoena that if the records are provided prior to the time of the deposition, appearance at the deposition is unnecessary.
A court order, on the other hand, must be signed by a judge. A subpoena signed by the clerk of a court is not a court order. The number of court orders FOs/DDSs receive is very small compared with the number of subpoenas received.
Differentiating between the two main types of subpoenas and court orders.
Subpoenas and court orders may be grouped into two main categories, depending on the type of information requested. Different regulations apply to each.
Personal program information from the files of a Social Security beneficiary, claimant, wage earner, or other NH. This information is subject to Regulation No. 1 (20 C.F.R. Part 401). In general, such information cannot be disclosed without the affected individual's written consent unless a routine use provides for its disclosure, the Commissioner of Social Security is a party to the proceeding, or the information is necessary for due process in a criminal proceeding. (GN 03305.001B)
Nonpersonal program information (whether or not it is related to a specific NH's record), or personal information about a NH gained through the performance of official duties. Some subpoenas and court orders simply request an SSA/DDS employee to testify about program matters in general, such as the disability determination process; program matters as they relate to a specific NH; or the employee's observations of a specific NH. These requests, which are often called "Touhy" subpoenas after a Supreme Court case of that name, are governed by the regulations at 20 C.F.R. Part 403, rather than 20 C.F.R. Part 401. In legal proceedings to which the United States is not a party, such testimony is not permitted unless the Commissioner of Social Security or his designee, the General Counsel of SSA, after consultation with the Regional Office of the General Counsel (OGC) and an OGC component in Baltimore, decides that compliance with the request would serve an agency objective. Approval of such requests is very rare. (Other exceptions to this rule apply where Congress has made the request; the employee appears in court in a private capacity; or the employee is appearing as an expert witness in connection with professional and consultative services as an approved outside activity.) GN 03330.015 and EM-01066REV, dated April 18, 2001.
Additionally, these regulations do not apply to requests for testimony in Social Security appeals when requested by SSA Administrative Law Judges. See GN 03103.160.
B. Procedures to follow upon receipt of a subpoena or court order
Accept service of the subpoena or court order unless a specific exception applies. Subpoenas must be accepted if a recipient is not specified. This includes subpoenas directed to an unnamed person such as "Manager" or "Custodian of Records". However, do not accept a subpoena or other compulsory process requiring disclosure of information if the document is directed simply to SSA, its Commissioner, or any central office official. Inform the person serving the subpoena or court that you lack authority to accept it. GN 03330.010B.2
NOTE: If a specific employee is named in the subpoena (e.g., the FO manager or a CR), and that person is not in the office at the time service is attempted, another employee should not accept the subpoena on the other person's behalf. This is not a "refusal" to accept a subpoena, because a subpoena which names a specific person can only be properly served to that person. Do not transfer subpoenas to other FOs or other SSA components. GN 03330.010.B.4
With respect to subpoenas received in the mail, employees should not sign a waiver of personal service. SSA requires personal service. This does not mean, however, that you can disregard such subpoenas; you must follow the instructions outlined below.
Record the receipt of the subpoena or court order and all pertinent information. Attached is a Subpoena Questionnaire to use in recording pertinent information from the subpoena and cover letter, if one accompanies the subpoena or court order. This form assists you in relaying information to the RO. Please reproduce the form as needed.
Immediately fax the subpoena or court order, the subpoena questionnaire, and any other documentation to RSI Programs in the Denver RO (fax: 303-844-4280), Attn: Mike Gardinier. SSA Field Offices with scanners may email a scanned PDF copy of the subpoena to Mike Gardinier. Mike will review the subpoena, consult with the Office of General Counsel (OGC) to determine what action needs to be taken, and advise the FO if it needs to do anything further.
C. Other FO responsibilities related to subpoenas and court orders
Claims folder location and retrieval. If the subpoena or order requires the production of records contained in the claims folder of a NH (such as disability records), the FO is responsible for ascertaining the location of the claims folder(s) and recording that information on the subpoena questionnaire. Do not delay referring the subpoena to the RO. Also, do not request that the claims folder be transmitted to the FO until the RO instructs you to arrange for the transmittal.
Copying documents in a claims folder for certification. SSA does not provide testimony in court or at a deposition to authenticate copies of documents from the NH's claims folder; rather, an official in the Denver RO certifies the authenticity of the copies (or, where appropriate, extracts from computer records). The FO is responsible for making the copies and forwarding the copies and the claims folder to the Denver RO in a timely manner. Similarly, the FO is responsible for copying the records in the claims folder of a deceased NH.
Instructing employees in the importance of reporting immediately the receipt of a subpoena or court order. A subpoena or court order is a legal document and must not be ignored. Therefore, it is essential for the FO manager to ensure that all employees understand the importance of reporting immediately the receipt of such a document, whether it is personally served or arrives in the mail. Further, any RO requests for additional information or other assistance should be handled on a priority basis unless the FO is advised otherwise. Very often the time between the service of the subpoena and the date for the appearance is extremely short, and action must be taken immediately to resolve the matter.
D. Responsibilities of the Denver Regional Office
Responding to routine subpoenas. In certain uncomplicated situations, e.g., where service is proper and the only problem is the lack of the NH's consent, the Denver RO may telephone or write a letter to the attorney or other individual responsible for the issuance of the subpoena explaining the consent requirement.
Referring non-routine subpoenas and all court orders to OGC. If a subpoena cannot be easily resolved by RO personnel, the Denver RO will refer the subpoena immediately to the appropriate OGC for resolution. In addition, all court orders must be referred to OGC.
Determining the validity of a consent. The RO is responsible for determining if the written consent attached to the subpoena, provided by the individual whose records are sought, meets SSA's requirements. To be valid, a consent to disclosure must:
be directed to SSA specifically;
state what information may be disclosed (with as much specificity as possible);
to whom the disclosure may be made;
the length of time the consent is effective; and
be signed and dated by the NH or by someone who can provide consent for him/her.
If the RO is at all uncertain whether the consent provided meets these basic criteria or the other requirements outlined in GN 03305.001, the appropriate OGC should be contacted.
Providing records in response to a subpoena or court order where the NH is deceased.
SSA may generally disclose non-tax return information about a deceased NH so long as care is taken not to disclose information that would violate the privacy rights of a living person. Therefore, the RO will review the deceased NH's folder to determine which records may be disclosed under the guidelines in GN 03315.010.
E. OGC responsibility
OGC will inform the RO subpoena/court order contact in writing as to the action taken.
If the attorney's name, address and phone number do not appear on the subpoena, call the clerk of the court. If the subpoena is from a small claims court, there probably will be no attorney.
Subpoena Type: Personal _____ Duces Tecum____ Both ___________
Is the subpoena for a deposition? Yes ______ No ________
Specific information requested: __________________________________
Is consent required to disclose the information requested? (Y/N)
If yes, was a valid consent provided?: (Y/N) (See criteria in GN 03305.001)
Folder location: Title II ____________ Title XVI __________
Do not request transfer of the folder(s) unless a valid consent has been provided or the RO asks you to initiate retrieval.
Date and time the subpoena was faxed to Denver RO: ____________________________
Fax to the Denver RO (303) 844-4280 the subpoena and any accompanying documents, together with a copy of this questionnaire.
RO REFERRAL TO OGC
Referred to Denver OGC on: (Date: _______________ Time: ___________)