§1.577 Access To Records.

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§1.577 Access to records.

(a) Except as otherwise provided by law or regulation any individual upon request may gain access to his or her record or to any information pertaining to him or her which is contained in any system of records maintained by the Department of Veterans Affairs. The individual will be permitted, and upon his or her request, a person of his or her own choosing permitted to accompany him or her, to review the record and have a copy made of all or any portion thereof in a form comprehensible to him or her. The Department of Veterans Affairs will require, however, a written statement from the individual authorizing discussion of that individual’s record in the accompanying person’s presence.

(b) Any individual will be notified, upon request, if any Department of Veterans Affairs system of records named contains a record pertaining to him or her. Such request must be in writing, over the signature of the requester. The request must contain a reasonable description of the Department of Veterans Affairs system or systems of records involved, as described at least annually by notice published in the Federal Register describing the existence and character of the Department of Veterans Affairs system or systems of records pursuant to §1.578(d). The request should be made to the office concerned (having jurisdiction over the system or systems of records involved) or, if not known, to the Director or Department of Veterans Affairs Officer in the nearest Department of Veterans Affairs regional office, or to the Department of Veterans Affairs Central Office, 810 Vermont Avenue, NW., Washington, DC 20420. Personal contact should normally be made during the regular duty hours of the office concerned, which are 8:00 a.m. to 4:30 p.m., Monday through Friday for Department of Veterans Affairs Central Office and most field facilities. Identification of the individual requesting the information will be required and will consist of the requester’s name, signature, address, and claim, insurance or other identifying file number, if any, as a minimum. Additional identifying data or documents may be required in specified categories as determined by operating requirements and established and publicized by the promulgation of Department of Veterans Affairs regulations. (5 U.S.C. 552a(f)(1))

© The department or staff office having jurisdiction over the records involved will establish appropriate disclosure procedures and will notify the individual requesting disclosure of his or her record or information pertaining to him or her of the time, place and conditions under which the Department of Veterans Affairs will comply to the extent permitted by law and Department of Veterans Affairs regulation. (5 U.S.C. 552a(f)(2))

(d) Access to sensitive material in records, including medical and psychological records, is subject to the following special procedures. When an individual requests access to his or her records, the Department of Veterans Affairs official responsible for administering those records will review them and identify the presence of any sensitive records. Sensitive records are those that contain information which may have a serious adverse effect on the individual’s mental or physical health if they are disclosed to him or her. If, on review of the records, the Department of Veterans Affairs official concludes that there are sensitive records involved, the official will refer the records to a Department of Veterans Affairs physician, other than a rating board physician, for further review. If the physician who reviews the records believes that disclosure of the information directly to the individual could have an adverse effect on the physical or mental health of the individual, the responsible Department of Veterans Affairs official will then advise the requesting individual:

(1) That the Department of Veterans Affairs will disclose the sensitive records to a physician or other professional person selected by the requesting individual for such redisclosure as the professional person may believe is indicated, and

(2) In indicated cases, that the Department of Veterans Affairs will arrange for the individual to report to a Department of Veterans Affairs facility for a discussion of his or her records with a designated Department of Veterans Affairs physician and for an explanation of what is included in the records. Following such discussion, the records should be disclosed to the individual; however, in those extraordinary cases where a careful and conscientious explanation of the information considered harmful in the record has been made by a Department of Veterans Affairs physician and where it is still the physician’s professional medical opinion that physical access to the information could be physically or mentally harmful to the patient, physical access may be denied. Such a denial situation should be an unusual, very infrequent occurrence. When denial of a request for direct physical access is made, the responsible Department of Veterans Affairs official will:

(1) Promptly advise the individual making the request of the denial;

(2) state the reasons for the denial of the request (e.g., 5 U.S.C. 552a(f)(3) 38 U.S.C. 5701(b)(1)); and

(3) advise the requester that the denial may be appealed to the General Counsel and of the procedure for such an appeal. (Authority: 5 U.S.C. 552a(f)(3))

(e) Nothing in 5 U.S.C. 552a, however, allows an individual access to any information compiled in reasonable anticipation of civil action or proceeding. (5 U.S.C. 552a(d)(5))

(f) Fees to be charged, if any, to any individual for making copies of his or her record shall not include the cost of any search for and review of the record, and will be as follows:

Activity Fees

(1) Duplication of documents by any type of $0.15 per page after first

reproduction process to produce plain 100 one-sided pages.

one-sided paper copies of a standard size

(8-1/2” x 11”; 8-1/2” x 14”; 11” x 14”).

Activity Fees

(2) Duplication of non-paper records, such as Actual direct cost to the

microforms, audiovisual materials (motion Agency as defined in pictures, slides, laser optical disks, video tapes, §1.555(a)(2) of this part to

audiotapes, etc.) computer tapes and disks, the extent that it pertains to

diskettes for personal computers, and any the cost of duplication.

other automated media output.

(3) Duplication of documents by any type of Actual direct cost to the

reproduction process not covered by Agency as defined in

paragraphs (f)(1) and (2) of this section §1.555(a)(2) of this part to

to produce a copy in a form reasonably the extent that it pertains to

usable by a requester. the cost of duplication.

Note: Fees for any activities other than duplication by any type of reproducing process will be assessed under the provisions of §1.526(i) or (j) of this part of any other applicable law.)

(g) When VA benefit records, which are retrievable by name or individual identifier of a VA beneficiary or applicant for VA benefits, are requested by the individual to whom the record pertains, the duplication fee for one complete set of such records will be waived. (Authority: 5 U.S.C. 552a(f)(5)) (38 U.S.C. 501(a))

[40 FR 33944, Aug, 12, 1975, as amended at 47 FR 16323, Apr. 16, 1982; 53 FR 10380, Mar, 31, 1988; 55 FR 21546, May 25, 1990]

http://www.warms.vba.va.gov/regs/38CFR/BOO...ART1/S1_577.DOC