TN 1 (03-07)
PR 07110.055 Wisconsin
A. PR 07-081 Disclosure of Information Related to Change in Representative Payee For Children of Anne G~ - REPLY, SS Claim Number ~, ~, Our Reference: 06-0073
DATE: March 5, 2007
This opinion settles a dispute regarding the release of materials used in a representative payee change from parent to parent, but specifically what documents are allowed to be released under the disclosure policies of the Social Security Administration. A parent (mother), who was previously appointed representative payee to receive benefits on behalf of her children, has appealed SSA's determination appointing the other parent (father) as payee. The request being made by the former payee and her representative is to receive and review copies of all the documents the Agency used in the selection process of the new payee appointment. The conclusion summarized that the parent or designated representative may review or receive copies of some documents in connection with the appeal, on behalf of the children, of the initial determination selecting the other parent as representative payee. However, certain information is subject to the Privacy Act and cannot be released. In this case, personal information about the father and other individuals, such as addresses, telephone numbers, SSNs, driver's license, etc., must be redacted.
You asked us to review materials relating to a dispute over a change in representative payee for Samantha and Ryan C~, minor children of the wage earner Anne G~. Those materials indicate that Ms. G~, who was previously appointed representative payee to receive the children's benefits on her account, has appealed the Agency's determination appointing the children's father, Paul C~, as representative payee for the children. Ms. G~, or her friend Mary S~ on her behalf, requested copies of documents in connection with the representative payee change in order to pursue her appeal of the representative payee selection for the children. You asked what materials the Agency could allow Ms. G~ or Ms. S~ to view. We conclude that Ms. G~, or her personal representative, is entitled to review copies of documents used in connection with the initial determination to select Mr. C~ as representative payee. However, personal information about Mr. C~ or any other individuals other than Ms. G~ and her children should be redacted from the copies of the documents before they are supplied to Ms. G~ or her representative. We also recommend that the Agency redact any information regarding the father's address, even though that address is also apparently the address where the children currently reside.
The materials sent to us fall into the following categories:
court orders and transcripts of court proceedings related to the dissolution of Ms. G~'s marriage to Paul C~ and the custody arrangements for their minor children;
correspondence from Ms. G~ or Ms. S~ to the field office (FO);
correspondence from FO personnel to Ms. G~;
correspondence from Mr. C~ to the FO;
correspondence between the FO and Judge Maxine W~;
forms completed by FO personnel as a result of interviews with the children;
a letter to Mr. C~ from his attorney;
a letter from a psychologist indicating that Ms. G~ would not be attending a meeting with him;
a letter from Ms. G~'s treating physician;
copies of two Representative Payee System (RPS) screens, input by FO personnel on April 28, 2006, relating to the payee change.
It appears from the letters from Ms. G~ and Ms. S~ that they are requesting copies of all documents related to the selection of Mr. C~ as representative payee, including any documents received by SSA from Mr. C~, and all SSA communications with the clerk of the court, judge, or the children's guardian ad litem. They are also requesting an accounting of who requested information about Ms. G~ from SSA, what information was supplied and by whom and on whose authorization, as well as copies of any disclosures SSA may have made of Ms. G~'s medical information or information about her disability benefits. It is our understanding from a telephone conversation with Linda T~ of the Greenfield, Wisconsin FO that no disclosures were made of medical, benefit, or other information about Ms. G~. Therefore, this memorandum deals solely with the issue of what documents pertaining to the change in representative payee may be disclosed to Ms. G~.
The materials submitted to our office refer to a March 7, 2006 notice of determination to appoint a new representative payee and a March 10, 2006 letter from Ms. G~ objecting to that decision. See June 26, 2006 letter to the FO, signed by Ms. G~ and Ms. S~. We presume there may be other documents of which we are unaware that Ms. G~ may be requesting the Agency to disclose. Therefore, our memorandum will seek to address, not only the specific documents forwarded to our office, but issues regarding disclosure in general and issues regarding selection of a representative payee. The general information in section A below may be helpful in explaining to Ms. G~ or her representative the factors considered in selecting a representative payee and the duties of a representative payee.
A. General Information Regarding Selection of a Representative Payee and Duties of a Representative Payee.
The Social Security Act requires SSA to determine whether an individual entitled to Social Security benefits requires a representative payee, and, if so, to designate the party to serve as the payee to receive benefits on behalf of a Social Security beneficiary. See 42 U.S.C. § 405(j). Pursuant to these provisions of the Social Security Act and the implementing regulations (20 C.F.R. §§ 404.2001-404.2065), SSA takes into account several factors in selecting a representative payee, such as who will serve the best interests of the beneficiary, a proposed payee's relationship to the beneficiary, the amount of interest shown toward the child, whether a proposed payee has legal authority to act for the beneficiary, whether the proposed payee has custody, and whether the proposed payee is in a position to know about the beneficiary's needs. 20 C.F.R. § 404.2020. See also POMS GN 00502.130. The regulations also provide a suggested order of preference to consider in selecting representative payee. 20 C.F.R. § 404.2021. See also POMS GN 00502.105.
Once SSA has appointed a representative payee, it holds that representative payee responsible for disbursing benefits in the best interest of the beneficiary. 20 C.F.R. § 404.2065. SSA periodically requires written reports from representative payees. Id. If a representative payee does not provide information requested by SSA, SSA may stop payment to the representative payee and may select a successor representative payee. 20 C.F.R. § 404.2025. A representative payee must apply benefits certified to him only for the "use and benefit" of the beneficiary and in a manner and for the purposes he determines, under SSA's guidelines, to be in the beneficiary's best interest. 20 C.F.R. § 404.2035. SSA will consider that payments certified to a representative payee have been used for the beneficiary's "use and benefit" if they are used for the beneficiary's current maintenance, such as for food, shelter, clothing, medical care, and personal comfort items. 20 C.F.R. § 404.2040. After the representative payee has used benefit payments for the beneficiary's current maintenance, he must conserve the remaining funds or invest them on the beneficiary's behalf. 20 C.F.R. § 404.2045.
B. Notice Requirements and Appeals Rights
The selection of a representative payee is an initial determination, which carries appeal rights. 20 C.F.R. § 404.902; POMS GN 00503.110.1 When a payee has been selected, advance notice is sent to the beneficiary or to the person who can act for the beneficiary. POMS GN 00503.100. While a current payee may be contacted for input on a proposed change of payee, an advance notice to the current payee is not required. POMS GN 00503.100. Advance notice should be sent to the parent or legal guardian, however, unless the parent is the proposed payee. Id. The POMS advises caution in determining whether or not to send advance notice to the non-selected parent where parents have joint custody. POMS GN 00503.100E.2.e.
The FO wrote Judge W~, who we presume is a family court judge, to advise her of the proposed selection of Mr. C~ as representative payee and to allow the judge input. The May 23, 2006 letter from the FO to Ms. G~ suggests that the FO contacted the court clerk to verify that Patrick J~ was no longer guardian ad litem for the children,2 and the court clerk advised the FO to contact Judge W~. Contact with third parties, such as a court or guardian ad litem is permissible to assist in administering SSA programs, including obtaining or verifying information about the suitability of a representative payee or representative payee applicant or seeking clarification about parental rights or guardianship. POMS GN 03316.065, GN 00503.100. For these purposes, SSA may disclose information from the claim folder without the beneficiary's consent. GN 03316.065. See http://www.ssa.gov.foia/bluebook/600222.htm ("Information pertaining to the identity of a payee or payee applicant, the fact of the person's application for or service as a payee, and as necessary, the identity of the beneficiary, may be disclosed to a third party where necessary to obtain information on employment, sources of income, criminal justice records, stability of residence and other information relating to the qualifications and suitability of representative payees or representative payee applicants to serve as representative payees or their use of the benefits paid to them under section 205(j) or section 1631(a) of the Act"). Ms. G~ has expressed concern that FO communications with the court or the guardian ad litem constitute improper "ex parte" communications. That is not the case. An ex parte communication is a communication between the court and a party to an action or their counsel. See Black's Law Dictionary (8th ed. 2004) ("communication"). Because SSA is not a party to the divorce action or custody proceedings, communication between SSA and the court was not "ex parte."
The selection of a representative payee is an initial determination subject to the formal appeals process. As a parent with legal joint custody,3 Ms. G~ has the right to appeal the initial determination selecting a successor payee, review the evidence upon which the selection was made, and submit additional evidence. See 20 C.F.R. § 404.2030 ("If you are under age 15, an unemancipated minor under age 18, or legally incompetent, our written notice goes to your legal guardian or legal representative . . . you, your legal guardian or your legal representative can appeal our designation of a particular person or organization to serve as your representative payee"); see also 20 C.F.R. § 404.902 ("[w]ho will act as your payee if we determine that representative payment will be made" is an initial determination, subject to administrative and judicial review). We verified with the Office of Income Security Programs (OISP) that a parent's right to appeal a representative payee selection is a right the parent has on behalf of the child, not in the parent's own right. It is our understanding that Ms. G~ is appealing the initial determination appointing a successor payee. Therefore, she is entitled to review evidence upon which the selection was made and to submit additional evidence if she desires. As explained in the following section, we advise that the Agency may provide copies of the documents used in determining the selection of Mr. C~ as successor representative payee for review by Ms. G~ or her legal representative, subject to redaction of private information.
C. Disclosure of Documents
Whether information and documents may be disclosed to Ms. S~ depends on whether Ms. G~ has a right to the information and, if so, whether she has executed a valid appointment authorizing Ms. S~ to act on her behalf. You sent us a copy of an SSA-1694-U4 Appointment of Representative form dated March 17, 2006. The form, as amended, gives Ms. S~ the authority to act as Ms. G~'s representative in connection with her rights under Title II. We presume that the form was validly executed by Ms. G~. We have reviewed the document copies you submitted to our office and reached the following conclusions about whether copies may be reviewed or released to Ms. G~ and her representative.
Copies of written correspondence between Ms. G~ or her representative and the FO may be provided to Ms. G~ or her representative, as the correspondence was either originated by, or addressed to, Ms. G~ or her representative. Because Ms. G~ or Ms. S~ would have previously had such correspondence in their possession, we see no harm in providing her with copies of such correspondence, if she requests such copies. We also see no reason to withhold copies of the court orders and transcripts of court proceedings related to the dissolution of Ms. G~'s marriage and the custody of her minor children. Because Ms. G~ is shown as a party to the court proceedings, she would have access to such documents through the court. Thus, we see no harm in providing her with copies of those documents.
With regard to the remaining documents, we advise that, in general, copies of such documents may be provided to Ms. G~ or her representative in connection with her appeal of the representative payee selection, but information should be redacted from those documents if disclosure of the information would constitute an invasion of privacy.
The RPS screen data is contained in a system of records accessible by social security number and, therefore, it is subject to the provisions of the Privacy Act, 5 U.S.C. § 552a. The Privacy Act gives an individual the right to access most records about that individual that are contained in a system of records. 20 C.F.R. § 401.35. Because Ms. G~ has filed an appeal of an initial determination on behalf of her children, she may generally have access to information contained on the RPS system if that information pertains to her or the children. See 20 C.F.R. § 401.75 (parent or guardian of minor is authorized to act on behalf of minor and viewed as if the parent were the subject individual). The Privacy Act does not allow her access to information about others, however, even if that information is contained in a record which also pertains to her or the children. See 20 C.F.R. § 401.60 ("When information about two or more individuals is in one record filed under your social security number, you may receive the information about you and the fact of entitlement and the amount of benefits payable to other persons based on your record."). Therefore, you may disclose copies of the April 27, 2006 RPS screen data. However, you should redact information pertaining to persons other than Ms. G~ and the children, i.e., Mr. C~'s social security number, driver's license number, and any other identifying data about Mr. C~. Release of personal information about Mr. C~ to Ms. G~ is not permitted under any Privacy Act routine use. Nor would such information be available to her under the Freedom of Information Act (FOIA), 5 U.S.C. § 552, as such disclosure would constitute a clearly unwarranted invasion of personal privacy. Under 20 C.F.R. § 402.100, in deciding whether to release a record that contains personal or private information, the foreseeable harm of invading a person's privacy is weighed against the public interest in disclosure. Here, we see no overt public interest in disclosure to override Mr. C~'s right to privacy regarding personal information pertaining to him.
With regard to the letter from the psychologist, we cannot ascertain whether the psychologist was treating her, presumably making the letter a medical record pertaining to Ms. G~, or whether the meeting referenced in the letter was in connection with the child custody proceedings. It appears that the latter explanation is more likely. In any event, if the letter was or may be considered by the Agency in determining that Mr. C~ should be the representative payee, we believe Ms. G~ is entitled to have it disclosed to her, particularly since she is the subject of the record. The same rationale applies to the letter to Mr. C~ from his attorney and to the letter from Ms. G~'s oncologist. These documents should be disclosed only if they were considered or may be considered in determining who should be the representative payee.
As Ms. G~ is appealing an initial determination on behalf of her children, she is entitled to see copies of the forms documenting the interviews with the children. This is because the children, as subjects of the record, would be entitled to such records under the Privacy Act if they were to request them directly. 20 C.F.R. §§ 401.35, 401.75. As with the RPS screens, however, personal information pertaining to persons other than Ms. G~ and the children (such as Mr. C~'s address or telephone number), should be redacted, as disclosure of such information is not required under the Privacy Act and falls within the invasion of privacy exemption to disclosure under the FOIA. 20 C.F.R. § 402.100. Similarly, any personal information about other persons should be redacted before disclosure of the other documents, including records of communications between the FO and the court, the guardian ad litem, and Mr. C~. Even if the children are or were living with Mr. C~, we recommend against disclosing to Ms. G~ any information regarding Mr. C~'s address. While the Agency may consider that the children are living with Mr. C~ in determining whether he should be the representative payee, and while the children would generally be entitled to know the address shown for them in our records, we believe that disclosing Mr. C~'s address to Ms. G~ under these circumstances would be an undue invasion of Mr. C~'s privacy.
In summary, we conclude that Ms. G~ or her representative may review copies or receive copies of documents in connection with her appeal, on behalf of the children, of the initial determination selecting Mr. C~ as representative payee. However, personal information about other individuals, such as addresses, telephone numbers, social security numbers, driver's license numbers, etc., must be redacted.