Judges: WILLIAM J. GUSTE, JR.
Filed Date: 11/15/1991
Status: Precedential
Modified Date: 7/5/2016
Dear Mr. Landry:
This office is in receipt of your request for an opinion of the Attorney General relative to R.S.
1. Is a notary, when performing his official function, covered by Section 7 of the Privacy Act of 1974;
2. Assuming a notary is covered by Section 7, must he comply with Section 7(b), if he solicits a social security number from an individual to be used as outlined in R.S.
35:17 , as amended;3. Assuming a notary is covered by Section 7, if an individual refuses to divulge his social security number to the notary, may the notary close the act without complying with R.S.
35:17 ; and, what, if any, penalty can be imposed on the notary if he knowingly violates R.S.35:17 ;4. Assuming the notary is covered by Section 7, may a notary, with impunity, refuse to close an act if an individual refuses to divulge his social security number;
5. If the notary may not do so with impunity, what, if any, liability does the notary face from private citizens who refuse to disclose their social security number;
6. If the notary obtains the individual's social security number from a third party, such as a bank, may the notary include that social security number in the act without complying with Section 7(b);
7. Must the third party, as a bank, comply with Section 7 under Yeager v. Hackensach Water Co.,
615 F. Supp. 1087 (D.N.J. 1985);8. In order to comply with Section 7(b) what must a notary tell the appearer from whom he solicits a social security number;
9. If a notary is sued by an individual for injunctive relief for violation of Section 7(a), for refusing to close an act involving that individual, who refuses to disclose his social security number, is the state responsible for defending the notary; and,
10. If a notary is sued by an individual for damages for violation of Section 7(a), for refusing to close an act involving that individual who refuses to divulge his social security number, must the state indemnify the notary?
Pursuant to Act
Pertinent to your inquiries are the provisions of Section 7 of the Privacy Act of 1974 which broadly prohibits federal, state and local governmental agencies from penalizing individuals in any way because of his failure to reveal his social security number upon request. It is provided "it shall be unlawful for any Federal, State or local governmental 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." Additionally, it is provided that "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."
In enacting Section 7, Congress sought to curtail the expanding use of social security numbers by governmental agencies, and to eliminate the threat to individual privacy and confidentiality of information posed by common numerical identifiers. There was the recognition that widespread use of a standard identification number in collecting information could lead to the establishment of a national data bank or similar informational system which could store data gathered from individuals from many sources and facilitate surveillance. Thus, Congress, saw a need for federal legislation to restore to the individual the option to refuse to disclose his social security number. Doyle v. Wilson,
In regard to your first question we recognize that R.S.
We reach this conclusion in part on the basis that we do not believe the notary is an "agency" that confers a "right, benefit, or privilege" as set forth in the Act without distorting the intent of these terms.
Also, we place reliance upon the reasoning in Ehm v. National R.R. Passenger Corp.,
We find it pertinent that the court observed that Amtrak's day-to-day operations were not subject to close government supervision, and did not bring them within the definition of the term "agency". The court concluded the degree of financial control by the government over Amtrak was not sufficient to negate Amtrak's character as a "private, nonfederally-chartered corporation".
Applying this reasoning, despite the recognition that notaries are appointed by the Governor and confirmed by the Senate, we do not find they fall within the purview of the Privacy Act as a state agency.
We find the reasoning in Bernal v. Fainter,
A similar question was presented in Jii v. Rhodes,
While these cases are obviously not directly in point, we find the reasoning persuasive to our conclusion.
Having reached the conclusion that the notary is not covered by Section 7, and is free from the dictates of the provisions, this makes the remainder of your questions moot, inasmuch as they are based upon the application of the Privacy Act to notaries.
However, we think it is pertinent to state it is the conclusion of this office that despite the directive that the social security number be included in the act, the notary may close an act without including the social security number of the individual who refuses to disclose the same. The rationale for this conclusion is the fact that the statutory provision, while requiring the recitation, provides the failure "to recite the number as required herein shall not affect the validity of the act." We feel this recognizes there will be instances when individuals will refuse to disclose their social security numbers.
Inasmuch as we have concluded the notary may close the act without the social security number of a party to the act who refuses to divulge the same, no need would arise to obtain the number from a third party or for the notary to refuse to close the act. However, where there has been a refusal, it would appear wise to have the notary include in the act a declaration that the individual refused to disclose the social security number, although we find no requirement in the law for such a declaration.
We hope this sufficiently answers your questions, but if we can be of further assistance, please do not hesitate to contact.
Sincerely your,
WILLIAM J. GUSTE, JR. Attorney General
BY: BARBARA B. RUTLEDGE Assistant Attorney General