215 F.3d 743 (7th Cir. 2000)
GERALD W. BAVIDO,    Plaintiff-Appellant,v.KENNETH S. APFEL, Commissioner   of Social Security,    Defendant-Appellee.
No. 98-4046
In the  United States Court of Appeals  For the Seventh Circuit
Argued January 21, 2000
Decided June 13, 2000

Appeal from the United States District Court  for the Central District of Illinois.  No. 98 C 2079--David G. Bernthal, Magistrate Judge. [Copyrighted Material Omitted]
Before BAUER, RIPPLE and KANNE, Circuit Judges.
RIPPLE, Circuit Judge.


1
Gerald Bavido wants the  Social Security Administration ("SSA") to let him  see his medical records. He wants, moreover,  direct access to the records and does not want to  name a physician or other individual to receive  them on his behalf, as SSA regulations require.  Mr. Bavido declined to designate a representative  and subsequently filed this action raising claims  cognizable under the Privacy Act. The district  court concluded that it lacked subject matter  jurisdiction because Mr. Bavido had failed to  exhaust his administrative remedies.


2
We believe that the district court had  jurisdiction because, under the circumstances  here, Mr. Bavido was not required to exhaust  administrative regulations. We also conclude, in  agreement with the Court of Appeals for the  District of Columbia Circuit, that the current  regulations are incompatible with the clear  mandate of the statute. Accordingly, we reverse  the judgment of the district court and remand the  case for proceedings consistent with this  opinion.

I    BACKGROUND

3
In early 1997, Mr. Bavido began submitting  written requests to SSA, asking that copies of  his medical records be released directly to him.  He claimed that the agency had compiled these  records in connection with his application for  disability benefits. The agency denied his  requests because Mr. Bavido refused to comply  with its regulatory requirement that he designate  a representative to receive the records.  According to assertions made by Mr. Bavido in the  district court (the record does not contain any  of the correspondence from SSA denying the  requests), the agency imposed this requirement  because it had determined that direct disclosure  of the records to Mr. Bavido would adversely  affect him. Mr. Bavido's subsequent inquiries to  the agency produced no further response.


4
In early 1998, Mr. Bavido, proceeding pro se,  submitted a form application to the district  court to proceed in forma pauperis ("IFP")  against SSA. In addition to providing details  about his salary history and assets, Mr. Bavido  specified that the nature of the action he  intended to bring was that "Social Security won't  give me an updated copy of my file" despite his  efforts to obtain it "for over a year." After the  court granted him IFP status, Mr. Bavido filed a  self-prepared version of a form complaint  alleging that SSA had denied him disability  benefits. The single-page form complaint provided  little detail, but stated that Mr. Bavido sought  judicial review under 42 U.S.C. sec. 405(g) of an  adverse decision of the Commissioner of Social  Security and that this decision involved his  "claim for Social Security file." The preprinted  complaint designated the Commissioner of Social  Security as the defendant. According to a docket  entry in the record, return of service was  promptly executed on "defendant CSS."


5
A hearing was held at which an assistant United  States attorney appeared on behalf of the agency.  According to the docket entry for the hearing,  Mr. Bavido reiterated that he "simply wants his  file." Shortly thereafter, SSA moved to dismiss  Mr. Bavido's complaint for lack of subject matter  jurisdiction. See Fed. R. Civ. P. 12(b)(1). SSA  argued that dismissal was warranted because Mr.  Bavido, by failing to designate a medical  representative, had not followed agency  procedures for requesting records and thus had  not exhausted his administrative remedies. Mr.  Bavido responded to the motion by challenging the  requirement that he designate a representative.  He stated that it would "degrade him[ ] to let  someone else read his private information."  Emphasizing that he "always handled my own  business," he asserted that "I don't miss house  payments, light bills, gas bills, so I don't need  anyone else telling me whether I can read my  file." Moreover, he insisted, the records in his  file had nothing to do with anyone but himself:  "No court, no one else for me to have to rely on.  Just me."


6
The magistrate judge, presiding with the consent  of the parties, dismissed the action for lack of  subject matter jurisdiction. The judge explained  that Mr. Bavido failed to exhaust his  administrative remedies by refusing to follow  agency regulations and to designate a  representative. According to the court, Mr.  Bavido had chosen the "wrong way" to obtain his  records and consequently had ended up at a "dead  end." Mr. Bavido filed a timely notice of appeal,  and we appointed counsel to represent him.

II    DISCUSSION

7
Although Mr. Bavido's complaint and the district  court's order assert jurisdiction under 42 U.S.C.  sec. 405(g), jurisdiction is based properly on  the Privacy Act, 5 U.S.C. sec. 552a(g)(1).1 The  Act authorizes individuals to bring suit in the  district court to challenge an agency's refusal  to disclose records pertaining to them. It  fosters "the principle that an individual should  to the greatest extent possible be in control of  information about him which is given to the  government." Darst v. Social Sec. Admin., 172  F.3d 1065, 1067 (8th Cir. 1999) (citation and  internal quotation marks omitted); cf. Haynes v.  Alfred A. Knopf, Inc., 8 F.3d 1222, 1229 (7th  Cir. 1993) ("The desire for privacy . . . is a mysterious but deep fact about human personality.  It deserves and in our society receives legal  protection."). Appellate jurisdiction is based  upon 28 U.S.C. sec. 1291.

A.

8
At the outset, we note that Kenneth Apfel, in  his capacity as SSA Commissioner, is not a proper  party defendant in this Privacy Act action. The  Privacy Act authorizes suit only against an  agency, and not an individual. See 5 U.S.C. sec.  552a(g)(1). Several courts, including our own,  have held that individual officers of federal  agencies are not proper parties to a Privacy Act  action.2


9
Improper denomination of defendants may be  waived by the government. See Scruggs v. United  States, 929 F.2d 305, 305-06 (7th Cir. 1991)  (defendant in Privacy Act action improperly  designated as "United States"); see also Smith v.  United States Dist. Court Officers, 203 F.3d 440,  442 (7th Cir. 2000) (defendants in access-to-  judicial-records suit designated as "unnamed  officers of the district court"). At oral  argument, SSA admitted that it had received  proper notice in this case and that it did not  dispute its designation as defendant. It,  moreover, had fully defended the action from its  inception. Accordingly, SSA has waived any  objection as to the naming of the proper party  defendant.3

B.

10
SSA has predicated most of its arguments in this  case on the proposition that Mr. Bavido has  failed to exhaust his administrative remedies  because he did not make a proper Privacy Act  request. The district court accepted the agency's  position and insisted on exhaustion. It concluded  that Mr. Bavido failed to exhaust his  administrative remedies because his request under  the Privacy Act did not comport with SSA's  procedural requirements for access to medical  records. Specifically, the court held that Mr.  Bavido had not met the requirements of 20 C.F.R.  sec. 401.55(b)(ii), which requires the requesting  individual to designate a representative, who can  be a "physician, other health professional, or  other responsible individual," to receive those  records. A representative "must" be named before  the agency will consider a request. See id. In  addition, the court continued, Mr. Bavido's  refusal to designate a representative prevented  him from exhausting his appellate remedies within  the agency. Under the regulations, a requesting  individual who declines to name a representative  may not administratively appeal SSA's refusal to  provide access:    If we refuse to release a medical record because  you did not designate a representative (sec.  401.55) to receive the material, that refusal is  not a formal denial of access and, therefore, may  not be appealed to the Commissioner.    20 C.F.R. sec. 401.70(c) (emphasis added).


11
Mr. Bavido thus finds himself trapped. He cannot  exhaust internal agency remedies unless he  formally designates a representative to receive  his records. To name such a representative would  amount to conceding his case. As the Supreme  Court has noted, exhaustion is unnecessary "where  the challenge is to the adequacy of the agency  procedure itself, such that 'the question of the  adequacy of the administrative remedy . . . [is]  for all practical purposes identical with the  merits of [the plaintiff's] lawsuit.'" McCarthy  v. Madigan, 503 U.S. 140, 148 (1992) (citation  and quotation marks omitted). See also Taylor v.  United States Treasury Dep't, 127 F.3d 470, 477  (5th Cir. 1997); Benavides v. United States  Bureau of Prisons, 995 F.2d 269, 271 & n.1 (D.C.  Cir. 1993). Here, SSA's administrative remedies  do not allow Mr. Bavido to challenge the agency's  procedure governing access to records. Exhaustion  therefore is not required.

C.

12
Mr. Bavido argues that the Social Security  regulations governing access to medical records  violate the "letter, spirit, and intent" of the  Privacy Act. This statute, he contends, requires  governmental agencies to establish a procedure  for disclosing records to an individual. SSA  regulations, however, condition access (and the  right to administrative appeal) on designation of  a representative who has complete discretion  regarding disclosure of the records. See 20  C.F.R. sec.sec. 401.55(b)(1), 401.70(c).


13
The agency asserts that Mr. Bavido did not  address this issue before the district court and  that, therefore, it is waived. Contrary to the  agency's contention, however, Mr. Bavido's pro se  pleadings in the district court, construed  liberally, preserve the claim. His single-page  form complaint referred to a "final" decision  concerning his Social Security file that  "adversely affects" him and stated that he had  "exhausted his administrative remedies."  Moreover, his response to the agency's motion to  dismiss emphasized his desire to have direct  access to his file, complained that the  representative requirement was degrading and  improper, insisted that he had exhausted his  remedies by making proper requests, and argued  that SSA's failure to release his records in a  timely manner violated the Act. Finally, we note  that the district court's order characterized,  albeit without discussion, the regulations as  "valid."


14
Having rejected the agency's assertion of  waiver, we turn to the merits and next consider  whether SSA's regulations conflict with the  Privacy Act. The Privacy Act was intended to help  individuals gain access to government records  about themselves and to correct erroneous  information in those records. See Blazy v. Tenet,  194 F.3d 90, 95-96 (D.C. Cir. 1999). The Act  permits individuals to make a written request for  such records for review and copying. The Act also  authorizes agencies to promulgate rules  administering the process by which individuals  may request records; subsection 552a(f)(3), the  subsection before us in this case, requires  agencies to establish a "special procedure . . .  for the disclosure to an individual of medical  records, including psychological records,  pertaining to him." 5 U.S.C. sec. 552a(f)(3)  (emphasis added).


15
Mr. Bavido's claim requires that we determine  the validity of the SSA's "special procedure"  regulation implementing sec. 552a(f)(3). This  regulation governs the manner in which SSA  discloses records:


16
(b) Medical records procedures--


17
(1) Notification of or access to medical records.


18
(i)  You may request notification of or access  to a medical record pertaining to you. . . .  [Y]ou must make a request for a medical record in  accordance with [these regulations].


19
(ii)  When you request medical information about  yourself, you must also name a representative in  writing. The representative may be a physician,  other health professional, or other responsible  individual who would be willing to review the  record and inform you of its contents at your  representative's discretion. If you do not  designate a representative, we may decline to  release the requested information. In some cases,  it may be possible to release information  directly to you rather than to your  representative.


20
20 C.F.R. sec. 401.55(b)(1). According to the  regulations, the agency determines whether an  individual will be given direct access to the  records or whether access will be provided only  indirectly, through that individual's designated  representative:


21
(2)  Utilization of the designated  representative.


22
You will be granted direct access to your medical  record if we can determine that direct access is  not likely to have an adverse effect on you. If  we believe that we are not qualified to  determine, or if we do determine, that direct  access to you is likely to have an adverse  effect, the record will be sent to the designated  representative. We will inform you in writing  that the record has been sent [to the designated  representative].


23
20 C.F.R. sec. 401.55(b)(2).


24
Mr. Bavido argues that sec. 401.55 is an  impermissible interpretation of the Privacy Act's  special procedure provision, sec. 552a(f)(3).  That provision's plain language, he asserts,  mandates the disclosure of records to the  requesting individual; it does not contemplate  that an agency can comply with this mandate by  creating a "special procedure" that results only  in disclosure to a designated representative.


25
The Court of Appeals for the District of  Columbia Circuit considered an analogous  regulatory scheme in Benavides v. United States  Bureau of Prisons, 995 F.2d 269 (D.C. Cir. 1993).  In that case, the Justice Department had  promulgated a regulation that purported to be a  "special procedure" under sec. 552a(f)(3). Under  the regulation, the Justice Department required,  as a condition of disclosing medical records,  that the requesting individual designate a  physician who had discretion to determine which  records should or should not be disclosed. See  id. at 271-72. Thus, like SSA's "special  procedure," the Justice Department's regulation  envisioned certain circumstances in which a  requesting individual would never obtain his  records. The court concluded that such a  regulation was not a permissible interpretation  of sec. 552a(f)(3). Nothing in sec. 552a(f)(3),  the court observed, suggested that disclosure to  a third party satisfied the government's  obligation under the Act: "A regulation that  expressly contemplates that the requesting  individual may never see certain medical records  is simply not a special procedure for disclosure  to that person." Id. at 272.


26
The Privacy Act clearly directs agencies to  devise special procedures for disclosure of  medical records in cases in which direct  transmission could adversely affect a requesting  individual. But, under the plain wording of the  statute, these procedures eventually must lead to  disclosure of the records to the requesting  individual. Like the invalidated regulation in  Benavides, sec. 401.55(b) exacts too much by  requiring the designation of a representative who  ultimately has complete discretion to disclose or  to withhold the requested information. SSA's  regulations effectively negate Mr. Bavido's  request for direct access and, consequently, do  not constitute a "special procedure . . . for . .  . disclosure to [that] individual." 5 U.S.C. sec.  552a(f)(3). We conclude, as did the District of  Columbia Circuit in Benavides, that such  regulations do not comply with the Privacy Act.


27
Although we hold that SSA's regulations are  unlawful, we must also recognize that, by virtue  of the plain language of the statute authorizing  special procedures, a requesting individual is  not entitled to "undiluted" direct access to his  records. See Benavides, 995 F.2d at 273. As long  as an agency assures the ultimate disclosure of  the records to the requesting individual, it may  impose a special procedure to limit the possible  harm that could result from unfettered access to  medical and psychological records. SSA is  entitled to revise its "special procedures" to  conform to the Privacy Act as we have interpreted  it here. In the present case, however, we also  must recognize that Mr. Bavido has been seeking  his medical records for three years. Like our  colleagues on the District of Columbia Circuit in  Benavides, we do not believe that the plaintiff  should have to wait until the agency finishes the  time-consuming process of promulgating a new rule  before receiving his records. See id. Rather, on  remand, the district court should allow access to  the records under the court's supervision. See  id. In fashioning such a remedy, the district  court ought to give great weight to the views of  the SSA on how this task can be most effectively  accomplished within the framework of the agency's  contemplated approach to new regulations  conforming to our decision. See id.

Conclusion

28
Because we conclude that Mr. Bavido was not  required to exhaust his administrative remedies  and that 20 C.F.R. sec. 401.55 is inconsistent  with the Privacy Act, we reverse the district  court's judgment dismissing the case and remand  for further proceedings consistent with this  opinion.    REVERSED and REMANDED



Notes:


1
 The statute states in pertinent part:    (g)(1) Civil remedies.--Whenever any agency    (A)  makes a determination under subsection  (d)(3) of this section not to amend an  individual's record in accordance with his  request, or fails to make such review in  conformity with that subsection;    (B)  refuses to comply with an individual request  under subsection (d)(1) of this section;    (C)  fails to maintain any record concerning any  individual with such accuracy, relevance,  timeliness, and completeness as is necessary to  assure fairness in any determination relating to  the qualifications, character, rights, or  opportunities of, or benefits to the individual  that may be made on the basis of such record, and  consequently a determination is made which is  adverse to the individual; or    (D)  fails to comply with any other provision of  this section, or any rule promulgated thereunder,  in such a way as to have an adverse effect on an  individual,    the individual may bring a civil action against  the agency, and the district courts of the United  States shall have jurisdiction in the matters  under the provisions of this subsection.    5 U.S.C. sec. 552a.


2
 See, e.g., Brown-Bey v. United States, 720 F.2d  467, 469 (7th Cir. 1983); accord Petrus v. Bowen,  833 F.2d 581, 583 (5th Cir. 1987); Wren v.  Harris, 675 F.2d 1144, 1148 n.8 (10th Cir. 1982);  Bruce v. United States, 621 F.2d 914, 916 n.2  (8th Cir. 1980); but see Hewitt v. Grabicki, 794  F.2d 1373, 1377 n.2 (9th Cir. 1986) (citing  countervailing authority holding that "heads of  agencies in their official capacity are proper  party defendants in Privacy Act cases [because]  such individuals have the final authority in the  agency and ultimate responsibility for custody of  records").


3
 In any event, Mr. Bavido's complaint may be  amended to add SSA as a defendant. See Swan v.  Clinton, 100 F.3d 973, 980 & n.3 (D.C. Cir. 1996)  (amending the complaint to allow the plaintiff to  sue the government officials in their official  capacity; not to allow amendment "would elevate  form over substance"). See also Fed. R. Civ. P.  21 (stating that new parties "may be . . . added  by order of the court on . . . its own initiative  at any stage of the action and on such terms as  are just"); Mullaney v. Anderson, 342 U.S. 415,  417 (1952) (noting that "Rule 21 will rarely come  into play at this stage of a litigation" but  granting the petitioner's motion to add parties  on the ground that "[t]o dismiss the present  petition and require the new plaintiffs to start  over in the District Court would entail needless  waste"); cf. 28 U.S.C. sec. 1653 (stating that  "[d]efective allegations of jurisdiction may be  amended, upon terms, in the trial or appellate  courts").
At oral argument SSA conceded that, because the  head of the agency was sued in his official  capacity, the agency has been on notice of the  action and fully defended it throughout the  litigation; we therefore need not be concerned  that the agency might suffer prejudice by being  added as a defendant at this point in the  proceedings. See Fed. R. Civ. P. 15(c) (stating  that an amendment changing a party relates back  to the date of the original pleading if the party  being added is a federal agency and process was  timely served on the United States Attorney (or  designee), the Attorney General, or an "agency or  officer who would have been a proper defendant if  named"); Delgado-Brunet v. Clark, 93 F.3d 339,  344 (7th Cir. 1996) (observing that the  government notice provision of Rule 15(c) renders  "[m]istakes in naming parties . . . far less  likely to have drastic consequences in official  rather than individual capacity actions"); Paulk  v. Department of Air Force, 830 F.2d 79, 82 (7th  Cir. 1987) (noting that a plaintiff who served  timely process on the U.S. Attorney should have  been allowed to amend the complaint under Rule  15(c) to rename the mistakenly-identified federal  defendant); accord Reyes v. Supervisor of Drug  Enforcement Admin., 834 F.2d 1093, 1097 (1st Cir.  1987) (stating that "[i]t seems clear [in this  Privacy Act action] . . . that the [U.S.  Attorney's Office] was on notice that it was the  proper party defendant, in which case the  amendment would relate back to the time of the  original complaint"); Barvick v. Cisneros, 941 F.  Supp. 1015, 1017-18 n.2 (D. Kan. 1996) (holding  that, although the employee improperly named the  Secretary of Housing and Urban Development rather  than the agency, in a Freedom of Information Act  suit, "HUD, the proper party defendant, [ ] had  notice of the action and ha[d] participated in  its defense[, and thus the employee's] complaint  [would be] deemed amended to name HUD as the  proper defendant"). We are mindful, too, of the  pro se nature of Mr. Bavido's complaint, which  must be held to less stringent standards than  formal pleadings drafted by attorneys. See Haines  v. Kerner, 404 U.S. 519, 520 (1972).


