Untitled California Attorney General Opinion ( 1990 )

OFFICE OF THE ATTORNEY GENERAL
State of California
JOHN K. VAN DE KAMP
Attorney General
______________________________________
OPINION :
: No. 90-202
of :
: OCTOBER 31, 1990
JOHN K. VAN DE KAMP :
Attorney General :
:
RONALD M. WEISKOPF :
Deputy Attorney General :
:
_________________________________________________________________
_______________
THE HONORABLE WILLIAM E. DAVIS, DIRECTOR, ADMINISTRATIVE
OFFICE OF THE COURTS, has requested an opinion on the following
question:
May a person who has been arrested for a traffic offense
be required to furnish his or her social security number to the
arresting officer or to the court when the person is admitted to
bail or fined, so that it would be available to a county department
of collections for collection purposes in the event the person does
not pay a fine?
CONCLUSION
A person who has been arrested for a traffic offense may
be required to furnish his or her social security number to the
arresting officer or to the court when the person is admitted to
bail or is fined, so that it would be available to a county
department of collections for collection purposes in the event the
person does not pay a fine, if (1) such mandatory disclosure is
authorized by state statute, Judicial Council rule, or other
administrative regulation, (2) the person is first informed that
furnishing the number is mandatory by virtue of such authority, and
(3) he or she is told the uses that will be made of it.
ANALYSIS
This opinion deals with whether a person who has violated
a traffic law may be required to disclose his or her social
security number at two particular stages encountered in the
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administration of California's traffic laws: when he or she is
arrested for the violation, and when he or she is admitted to bail
or is fined in court. The arresting officer would write the social
security number on the Notice To Appear; the court would enter it
in the court records. The purpose for securing the number in
either situation would be to have it available so that it could
ultimately be used by a county department of collections in order
to pursue collection of a delinquent fine.1
At present no state statute, state or local
administrative regulation, or court rule approved by the Judicial
Council, sanctions such requests for traffic violators' social
security numbers. We conclude that until such time as that type of
authority exists, a person who has violated a traffic law may not
be required to furnish his or her social security number to an
arresting officer or to a court. Moreover, before a traffic
violator may be required to provide the number, he or she must be
informed of certain information required by section 7(b) of the
federal Privacy Act.
The use of the social security number as a personal
identifier, "both in private commercial transactions and in citizen
communications with government, [has become] commonplace, despite
Congressional efforts to curb expanding compulsory disclosure of
[it]." ( Doyle v. Wilson (D.Del. 1982) 529 F. Supp. 1343, 1351.)
The basic Congressional effort is contained in section 7 of the
Privacy Act of 1974 (Pub.L. 93-579 [5 U.S.C. § 552a & hist. note])
which provides as follows:
"(a)(1) It shall be unlawful for any Federal, State
or local government agency to deny to any individual any
right, benefit, or privilege provided by law because of
such individual's refusal to disclose his social security
account number.
"(2) the provisions of paragraph (1) of this
subsection shall not apply with respect to -- [¶] (A) any
disclosure which is required by Federal statute, or [¶]
(B) the disclosure of a social security number to any
Federal, State, or local agency maintaining a system of
records in existence and operating before January 1,
1975, if such disclosure was required under statute or
regulation adopted prior to such date to verify the
identity of an individual.
1
Several counties have established a special department or
office to collect unpaid fines, court ordered assessments, and
other monies owing the county. In other counties that function is
carried out by an existing county office, such as the county
counsel, the county treasurer, or the county auditor/controller.
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"(b) Any Federal, State, or local government agency
which requests an individual to disclose his social
security account number shall inform that individual
whether that disclosure is mandatory or voluntary, by
what statutory or other authority such number is
solicited, and what uses will be made of it."
Section 7 thus contemplates that government agencies may
request, or even require, individuals to disclose their social
security numbers, but it contains two separate and distinct
conditions which affect their doing so: subsection (a) sets an
absolute prohibition against a government agency's attaching
certain consequences to a refusal to provide a social security
number (except in certain situations); and subsection (b) requires
that before a person can even be asked for his or her social
security number by a government agency, he or she must be informed
of three things: (i) whether the disclosure is mandatory or
voluntary, (ii) the statute or other authority under which the
request is made, and (iii) how the number will be used. (See e.g,
Yeager v. Hackensack Water Co. (D.N.J. 1985) 615 F. Supp. 1087,
1091; Doyle v. Wilson, supra, 529 F. Supp. 1343, 1349-1350; Doe v.
Sharp (D.Mass. 1980) 491 F. Supp. 346, 349-350; Greater Cleveland
Wel. Rights Org. v. Bauer (N.D.Ohio 1978) 462 F. Supp. 1313, 1319,
1320.)
We construe the reference to "right, benefit, or
privilege" in subsection (a) to mean not only those things to which
a person might be entitled to by law as of right, but also those
things to which he or she may be entitled in the discretion of
another if the exercise of that discretion is conditioned upon
providing the social security number. Subsection (a) forbids the
denial of either for failing to provide a social security number
unless provision of the number is required by federal statute or by
a statute or regulation antedating 1975 that was adopted to
identify individuals in connection with a then-existing system of
records.
A person apprehended for a traffic offense is accorded
various rights, benefits, and privileges by California's Vehicle
Code at different stages in the law's enforcement. (See generally,
Comment, California Traffic Law Administration (1960) 12
Stan.L.Rev. 388.) For example, in the vast majority of traffic
cases, a person arrested for a traffic offense has an absolute
right to be released from custody on the basis of signing a Notice
To Appear, i.e., a promise to appear in court or before a person
authorized to receive a deposit of bail. (Veh. Code, §§ 40500,
40504; see People v. Superior Court (Simon) 7 Cal. 3d 186, 199;
People v. Superior Court (Fuller) (1971) 14 Cal. App. 3d 935, 942.)
And even where more serious traffic offenses are involved, the
person may be eligible to receive the "benefit" of being released
from custody on signing the Notice and promising to appear, if that
seems proper "in the judgment of the arresting officer." (Veh.
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Code, §§ 40303, 40404; see People v. Superior Court (Simon), supra
at 199-200; People v. Superior Court (Fuller), supra; California
Traffic Law Administration, supra, 12 Stan.L.Rev. at pp. 396-397.)
Then, a person who is taken into custody to appear before a
magistrate may have an absolute right to be admitted to bail and
released from custody either by the magistrate before whom he or
she is taken, or, if the magistrate is unavailable, by the clerk of
the magistrate or the officer in charge of the jail. (Veh. Code,
§§ 40302, 40303, 40306, 40307; cf., Cal. Const., art. I, § 12; Pen.
Code, §§ 1271, 1281; see People v. Superior Court (Simon), supra,
7 Cal.3d at 209; People v. Collin (1973) 35 Cal. App. 3d 416, 421;
People v. Rhodes (1972) 23 Cal. App. 3d 257, 259; Gustafson, Bail In
California (1956) 44 Cal.L.Rev. 815, 816-818, 822.)
In these, or any other situation where a right, benefit
or privilege accorded a traffic violator would be held hostage to
a demand to furnish a social security number, section 7(a) of the
Privacy Act would be violated unless the furnishing of the number
was required by federal statute or by a statute or regulation
adopted prior to January 1, 1975 designed to verify the identity of
individuals in connection with a then existing system of records.
We are unaware of any federal or pre-1975 state authority that
requires the furnishing of social security numbers in the
circumstances under consideration, and none has been suggested.
However, there is a federal statute, which was enacted
after the Privacy Act, that permits states and local agencies to
require persons to disclose their social security numbers if that
is found necessary for identification purposes in the
administration of certain state laws. Specifically, subparagraph
(C) was added to section 205(c)(2) of the Social Security Act [42
U.S.C.A. § 405(c)(2)(C)] in 1976 to provide in part:
"(C)(i) It is the policy of the United States that
any State (or political subdivision thereof) may, in the
administration of any tax, general public assistance,
driver's license, or motor vehicle registration law
within its jurisdiction, utilize the social security
account numbers issued by the Secretary for the purpose
of establishing the identification of individuals
affected by such law, and may require any individual who
is or appears to be so affected to furnish to such State
(or political subdivision thereof) or any agency thereof
having administrative responsibility for the law
involved, the social security account number (or numbers,
if he has more than one such number) issued to him by the
Secretary.
"(ii) If and to the extent that any provision of
Federal law heretofore enacted is inconsistent with the
policy set forth in clause (i) of this subparagraph, such
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provision shall, on and after the date of the enactment
of this subparagraph, be null, void, and of no effect.
"(iii) For purposes of clause (i) of this
subparagraph, an agency of a State (or political
subdivision thereof) charged with the administration of
any general public assistance, driver's license, or motor
vehicle registration law which did not use the social
security account number for identification under a law or
regulation adopted before January 1, 1975, may require an
individual to disclose his or her social security number
to such agency solely for the purpose of administering
the laws referred to in clause (i) above and for the
purpose of responding to requests for information from an
agency operating pursuant to the provisions of part A
[Aid To Families With Dependent Children or D [Child
Support and Establishment of Paternity] of title IV of
the Social Security Act [42 U.S.C.A. § 601 et seq.]."
Subparagraph (C) provides a separate basis upon which
states and local agencies can require persons to furnish their
social security account numbers. ( Doyle v. Wilson, supra, 529
F.Supp. at 1349; Doe v. Sharp, supra, 491 F.Supp. at 349). Thus,
even where a required disclosure of a social security number is
involved and a traffic violator might be denied a right, benefit,
or privilege provided by law because of a refusal to disclose,
under subparagraph (C) of section 205(c)(2) of the Social Security
Act the officer or the court may still require the individual to
furnish the number, if that would be "incident to [aiding
identification of the person in] the administration of
[California's] driver's license ... law...." ( Doyle v. Wilson,
supra; see also, Doe v. Sharp, supra; H.R.Conf.Rept. No. 94-1515 to
Pub.L. No. 94-455, reprinted in 1976 U.S. Code Cong. & Admin. News
2897, 4118, 4194-4195.) We believe that securing and using traffic
offenders' social security numbers in the situations presented come
within the ambit of the permission granted by subparagraph (C).
With the 1976 enactment of subparagraph (C), "States are
permitted to use social security numbers on driver's licenses...."
(U.S. v. Silva-Chavez (5th Cir. 1989) 888 F.2d 1481, 1483.)
Moreover, the statute speaks in terms of states and local agencies
being able to require individuals to disclose their social security
numbers "for the purpose of administering [a driver's license law]"
(§ 205(c)(2)(C)(iii)), and utilizing the social security number for
the purpose of establishing the identification of individuals "in
the administration" of such a law (id., sub¶ (C)(i).) That
permission implies a continuing ability to require and to use the
numbers as the law is being administered. (Cf. Doyle v. Wilson,
supra, 529 F.Supp. at 1343.)
The Vehicle Code does not stop its oversight of
California drivers with the issuance of licenses, and its
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administration involves the post-licensing control of errant
drivers. (Cf. Veh. Code, §§ 1803, 1806, 12807, 12808, 12810,
12810.5, 12812, 13330 et seq.) The imposition of fines and
"traffic bail" is part of that post-licensing administration of the
law where both are employed to punish the traffic offender. (Veh.
Code, § 42001.5 et seq.; 40512, 40512.5; McDermott v. Superior
Court (1972) 6 Cal. 3d 693, 695-696; Comment, California Traffic Law
Administration, supra, 12 Stan.L.Rev. at p. 400.) In fact, most
traffic cases in the state are disposed of by what is known as
"[traffic] bail forfeiture." (See, Comment,California Traffic Law
Administration, supra, 12 Stan.L.Rev. at p. 400; see also, People
v. Superior Court (Simon), supra, 7 Cal.3d at 199; McDermott v.
Superior Court, supra, 6 Cal.3d at 697 fn. 2.) Both the offender
who has actually been taken before a magistrate and has posted bail
so as to be released from custody, and the offender who has
remained at liberty on a written promise to appear, may avoid a
court appearance by failing to appear and forfeiting his or her
bail in lieu of fine. (§§ 40512, 40512.5; see also, People v.
Superior Court (Simon), supra.) Thus, "[b]ail for traffic law
offenses is, generally, in effect a fine and is employed more for
the purpose of punishment and judicial convenience than insuring
that the trial process will take place." ( McDermott v. Superior
Court, supra, 6 Cal.3d at 696.)
In order for this system to work and for the traffic
offender to be punished for violating the law, the fine that is
imposed or the bail that is forfeited must actually be paid.
Should collection of it become necessary, the identity of a driver
must be known with some degree of accuracy. However, given the
number of identical and similar names and the mobility of the
population, achieving that identification is particularly difficult
without a specific identifier to pinpoint individuals wherever they
are. Since the usual traffic case involves only minimal contact
with the offender, with that occurring either in the field or in a
brief court appearance, the difficulty of being able to
specifically identify a person who has violated a traffic law at a
later time when a fine is not paid, is particularly pronounced.
With the social security number, a county department of
collections could more easily identify a debtor-defendant,
especially where a common name is involved. (Cf. McElrath v.
Califano (7th Cir. 1980) 615 F.2d 434, 440; Cantor v. Supreme Court
of Pennsylvania (E.D. Pa. 1973) 353 F. Supp. 1307, 1321.) This
would enable it to pursue collection of an unpaid fine through the
courts (cf. Pen. Code, §§ 1214(a), 1214.1; 63 Ops.Cal.Atty.Gen.
418, 424 (1980)), and through the state's tax intercept program
(cf. Gov. Code, §§ 12419.3, 12419.8). We believe that obtaining
the number for the purposes described is a necessary incident to
the effective administration of California's driver's license law.
Accordingly we conclude that under subparagraph (C) to section
205(c)(2) of the Social Security Act, persons who violate a traffic
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law may be required to provide their social security numbers to an
arresting officer or to a court.
However, subparagraph (C) speaks of permitting "[a] State
(or political subdivision thereof)" or "an agency of a State (or
political subdivision thereof) charged with the administration of
[a] ... driver's license ... law," to require individuals to
disclose their social security number. We believe that before an
individual may be compelled to furnish his or her number in a
particular situation, a governmental agency must take formal
legislative action to require that disclosure. (See Alcaraz v.
Block (9th Cir. 1984) 746 F.2d 593, 600-602 [formal rules adopted
by U.S. Secretary of Agriculture]; United States v. $200,000 In
United States Currency (S.D. Fla. 1984) 590 F. Supp. 866, 869 [form
insufficient without regulation or other administrative legislation
to effect it]; cf. Wolman v. United States of Am., Selective
Service Sys., supra, 501 F.Supp. at 313; Doyle v. Wilson, supra,
529 F.Supp. at 1349.) Here that would mean that the state itself,
or an administrative agency of the state charged with the
administration of the Vehicle Code, would first have to take
appropriate formal action adopting a requirement that drivers
furnish their social security numbers to arresting officers and
courts, before the officers and the courts could demand them.2
With such formal authority, we conclude that a person who
violates a traffic law may be required to furnish his or her social
security number to an arresting officer when he or she is arrested,
or to a court when he or she is admitted to bail or is fined. Even
then, however, one other consideration impacts the request for the
number. Subparagraph (C) of section 205(c)(2) of the Social
Security Act provides an exception only to the strictures of
subsection (a) of section 7 of the Privacy Act (see Doyle v.
Wilson, supra, 529 F.Supp. at 1349; Doe v. Sharp, supra, 491
F.Supp. at 349) and those of subsection (b) would still govern any
request that is made for them. Under subsection (b), before a
state or local agency may request an individual to provide his or
her social security number, the individual from whom disclosure is
sought must be informed "whether that disclosure is mandatory or
voluntary, by what statutory or other authority such number is
solicited, and what uses will be made of it." Compliance with the
2
For example, section 40500, subdivision (b) of the Vehicle
Code authorizes the Judicial Council to devise the form for the
Notice to Appear. We believe that invites the Council to take rule
making action to have the social security number of traffic
offenders appear on the Notice. Similarly, the Judicial Council
could draft a rule for courts hearing traffic cases to regularly
ask for the social security number of a defendant before admitting
the person to bail or fining him or her. (Cf. Cal. Const., art. I,
§ 6; Gov. Code, § 68070.)
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subsection is the key to achieving the overall congressional
objective for enacting section 7 of the Privacy Act and "adequate
explanations of the information required by [it] is critical to the
right afforded by [subsection (a)] to withhold disclosure of the
social security number, except in limited circumstances." (Doyle
v. Wilson, supra, 529 F.Supp at 1349, 1350; see also, Doe v. Sharp,
supra, 491 F.Supp at 349.) Accordingly, courts which have reviewed
the matter have carefully examined the timing, content and
presentation of the section 7(b) information to see if it
constitutes a meaningful offering of the required information. In
order for the section to operate in an effective manner, the person
must be given the information at or before the time the request for
the social security number is made. (See Doyle v. Wilson, supra at
1350; Greater Cleveland Wel. Rights Org. v. Bauer, supra, 462
F.Supp. at 1319, 1320; Doe v. Sharp, supra at 349-350.) For a
notification to be "meaningful," it must inform the individual of
the three items of information required by subsection (b) with some
degree of specificity, especially as regards the uses that will be
made of the number. (See e.g., Alcaraz v. Block, supra, 746 F.2d
at 608-609; McElrath v. Califano, supra, 615 F.2d at 438 & 438 fn.
3; Greater Cleveland Wel. Rights Org. v. Bauer, supra, at 1318­
1321.)
For example, in the situation presented, a notification
should inform the person that the number will be used as an aid in
identifying him or her should it be necessary to pursue collection
of any unpaid fine (or bail forfeiture), including using it if
necessary to identify him or her in the tax intercept program by
which the amount owing would be offset against any tax refund due.
A timely and sufficient notification may be given by having
adequate information on the Notice To Appear, or on another written
notice given the traffic offender.
We therefore conclude that if authorized by state
statute, Judicial Council rule, or other administrative regulation,
an arresting officer or a court may require a traffic offender to
disclose his or her social security number, provided that the
individual is first given the information specified in section 7(b)
of the Privacy Act.
* * * * *
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