In 1992 social security adopted rules concerning which materials it may appropriately withhold from disability claimants and/or their attorneys pursuant to the Privacy Act (PA) and the Freedom of Information Act (FOIA).
The rules are set forth in Social Security Ruling (SSR) 92-1p. They came about as a result of increased requests for disclosure of so-called work files in disability claims.
These work files contain things such as interagency and intraagency memoranda, legal strategies, case analyses, notes taken during hearings, and trivial transmittal materials such as filing and routing instructions.
In order to comply with both the PA and FOIA, and at the same time to protect privileged information, the agency outlined the detailed rules set out in the aforementioned ruling.
In a nutshell, the agency will rely on exemptions in PA and FOIA to withhold requested information in the following basic areas: 1) records compiled in reasonable anticipation of litigation; 2) pre-hearing communications related to the deliberative process; 3) the attorney-client privilege; and 4) the work-product doctrine.
The first area covers materials that would not routinely be discoverable in the course of litigation.
The deliberative process exemption protects information related to the process of arriving at a decision in a case. The purpose is threefold: 1) to encourage frank and open discussion among decision makers about the issues in a case; 2) to protect against disclosure of proposed opinions before they are adopted; 3) to protect against the confusion that might result from disclosure of reasons or rationale that were not ultimately grounds for an agency action.
The well-known attorney-client privilege guards against disclosure of an attorney’s or litigant’s mental impressions, legal theories or strategies, and materials which ask for or provide legal advice.
Other than these exceptions, a disability claimant is entitled to see everything in his or her file.
This material should not be construed as legal advice for any particular fact situation but is intended for general informational purposes only. For advice specific to any individual situation, an experienced attorney should be contacted.