In the Spotlight

PWDF Posts Public Comment Objecting to SSA’s Plan to Destroy Paper Files Beneficiaries May Need in the Future

By PWDF Staff

When Congress passed the Privacy Act of 1974 5 U.S.C. § 552, it was to allow U.S. citizens to get information the government has related to them. In litigation in two separate civil rights discrimination cases over 3 ½ years, where PWDF has asked the SSA for records based on the Privacy Act, the SSA has refused to provide these plaintiffs with their own records, either under the Privacy Act or through discovery. (Not filed copy of Plaintiff’s statement regarding discovery dispute pursuant to the federal judge’s standing order but sent to SSA’s lawyer: REDACTED 2025.11.24 Plaintiff’s Statement re Discovery Dispute.)

Previously, a federal judge ordered the SSA to produce medical records after they twice refused on December 5, 2023, with a compliance date of January 3, 2024. (Docket 55.)

A week ago, the SSA announced changes to its record-keeping procedures for the Freedom of Information Act (FOIA) and Privacy Act Request and Appeal System.¹, ² “This system maintains information about individuals who submit FOIA or Privacy Act requests, including but not limited to Privacy Act requests, amendments, and administrative appeals to SSA; FOIA requests and appeals; . . . attorneys representing individuals submitting records requests and appeals; individuals who are the subject of such requests and appeals” and others.  “This system consists of records received, created, or compiled in response to FOIA and Privacy Act requests or administrative appeals.”³

These modifications include storing records solely in electronic form (clarifying that paper is no longer an operational format for this system). It will require a person who wants to get a copy of records related to themselves to provide a notarized statement or an attestation to access their records, making it harder for people to get information about what the government has on them and having a chilling effect on FOIA.  It also stated that it will apply the modified system upon publication of the notice.⁴

Nationwide, it appears that when the SSA says a beneficiary has an overpayment from their Social Security benefits, and thus needs to pay it back, their cases are “paper cases,” i.e., their disability records are maintained in paper files.  These paper cases usually arise based on a medical continuing disability review (CDR) or work review, which can also include a retroactive overpayment.  The SSA says about 5% of the nation’s cases are paper cases. Unfortunately, the SSA tends to lose paper files and the paper cases often have problems, e.g., files are incomplete due to missing parts. When a beneficiary’s paper claim file is incomplete, SSA’s regulations require the SSA to reconstruct it. Electronic files are less likely to be lost, but there is no regulation requiring the SSA to reconstruct electronic cases.

As a consequence, PWDF posted formal comments to this notice, objecting to the SSA’s plans to discontinue storing claimant paper files. In our submission we stated:

“People who are applying for SSI or SSDI Disability or being reviewed for cessation by CDRs or work CDRs often need access to their prior disability records. SSA’s own Hearings, Appeals, and Litigation Law Manual (HALLEX) and other systems presently demonstrate how difficult it is for this agency to locate people’s own records needed for current or future reviews and/or new SSI/SSDI applications. We are against destruction of any of these records, whether digital or paper. We object to implementation upon posting in the Federal Register and allowing only 30 days for public comment from November 18, 2025.”

See www.regulations.gov, Docket No. SSA-2024-0015.

An incomplete case file has been an issue with our current client Jane Doe.⁵  Ms. Doe is currently to be scheduled again for her fifth hearing before an ALJ. In reality, the SSA could have lost or, as it appears now, concealed the records in this paper case.⁶  The rules regarding record reconstruction in HALLEX, which is followed by most ALJs nationwide, including at SSA’s Appeals Council, are extremely arduous, and it is hard to believe the SSA would follow their HALLEX sections in all cases because they are so burdensome (see link to an excerpt: v54 HALLEX Instructions Excerpt 11-26-25). It used to state in a regulation to “reconstruct,” if lost.

There are advantages to having either paper or digital records, and if the SSA decides in favor of digital, as appears to be the case, perhaps pre-existing paper records should not be destroyed while the beneficiary is still alive.  It seems that if any beneficiary records exist where s/he is not deceased, that no records should be destroyed until any person potentially affected has died.  When there is any doubt, let the balance fall on the side of the individual potential need, given it has now been 20 years since the paperless system was initiated. After all, the FOIA and Privacy Acts are intended to protect the rights of the people, not the government.

In addition, while the SSA allowed 30 days for public comment on these changes, they stated that some of the changes would be effective immediately and others would be effective in 30 days, i.e., the date public comments were due.  This timing begs the question: if some change take effect the same day the notice is published, is there any pretense that the SSA intends to consider the public’s comments?

For any federal or state agency to try to destroy evidence violates the Constitution.

We encourage our readers to post their own comments objecting to SSA’s plan to modify the records system for FOIA and the Privacy Act. The notice is available and comments can be posted here.

PWDF Profile

Who We Are

People With Disabilities Foundation is an operating 501(c)(3) nonprofit organization based in San Francisco, California, which focuses on the rights of the mentally and developmentally disabled.

Services

Advocacy: PWDF advocates for Social Security claimant’s disability benefits in eight Bay Area counties. We also provide services in disability rights, on issues regarding returning to work, and in ADA consultations, including areas of employment, health care, and education, among others. There is representation before all levels of federal court and Administrative Law Judges. No one is declined due to their inability to pay, and we offer a sliding scale for attorney’s fees.

Education/Public Awareness: To help eliminate the stigma against people with mental disabilities in society, PWDF’s educational program organizes workshops and public seminars, provides guest speakers with backgrounds in mental health, and produces educational materials such as videos.

Continuing Education Provider: State Bar of California MCLE and Commission of Rehabilitation Counselor Certification.