Judges: DAN MORALES, Attorney General of Texas
Filed Date: 1/27/1994
Status: Precedential
Modified Date: 7/6/2016
Honorable William R. Ratliff Chair Senate Education Committee P.O. Box 12068 Austin, Texas 78711
Re: Authority of a state licensing agency to require the disclosure of social security numbers (RQ-614)
Dear Senator Ratliff:
You state that you request "clarification of the law relating to the disclosure of social security numbers." By way of background, you explain that the Texas Real Estate Commission (the "commission") has requested the social security number ("SSN") of an individual who is licensed by the commission. The licensee has objected to providing his SSN on the grounds that section 7 of the federal Privacy Act of 1974 prohibits state agencies from denying an individual any "right, benefit, or privilege" for refusing to divulge his or her SSN. See
Section 7 of the Privacy Act of 1974 provides:
(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.
(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. [Footnote added.]
Section 7 has been interpreted by federal courts to absolutely prohibit any federal, state or local government agency from denying an individual any right, benefit or privilege provided by law for refusing to disclose his or her SSN, except in the limited circumstances delineated in subsection (a)(2). See, e.g., Greidinger v. Davis,
Your inquiry requires us to first consider whether the commission's request for the licensee's SSN falls within any of the exceptions set forth in subsection (a)(2) of section 7. If it is so excepted, then the licensee's refusal to provide his SSN may be a basis for denying a right, benefit or privilege, in this case the renewal of his license. Your inquiry also requires us to consider whether a government agency's request for an SSN which is excepted under subsection (a)(2) must be nevertheless accompanied by the information set forth in subsection (b).
Subsection (a)(2)(A) of section 7 permits a government agency to require disclosure of an SSN only if the disclosure is required by a federal statute, such as selective services laws, see Wolman v. United States,
The subsection (a)(2)(B) exception has been expanded in effect by a 1976 amendment to the Social Security Act which provides in pertinent part:
(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 [to furnish such social security account number].
. . . .
(v) 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 number 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 . . . .
Whether the commission may require a licensee to disclose his or her SSN depends upon whether the disclosure falls within one of the exceptions set forth in section 7(a)(2) of the Privacy Act of 1974, or the foregoing provision of the Social Security Act. In a letter to the licensee, the commission indicates that it is required to obtain licensees' SSNs by section
57.491, the commission has adopted an administrative rule which provides in pertinent part as follows:
Renewals of licenses issued by the commission are subject to the policies established by the Texas Education Code, §
57.491 . Before the commission declines to renew a license due to a default on a loan . . . the commission shall give notice and provide an opportunity for a hearing . . . . The commission shall advise licensees in renewal notices and license application forms that default on a loan guaranteed by the [Texas Guaranteed Student Loan Corporation] may prevent a subsequent renewal of a license.
We are unaware of any federal statute that requires state licensing agencies such as the commission to require licensees to disclose their SSNs. The Texas Guaranteed Student Loan Corporation guarantees loans made to eligible borrowers by eligible lenders as provided by the federal guaranteed student loan program under the federal Higher Education Act of 1965,
Furthermore, we have no basis for concluding that the disclosure is excepted by section 7(a)(2)(B) of the Privacy Act of 1974 or the 1976 amendments to the Social Security Act. With respect to the 1976 amendments to the Social Security Act, it is obvious that the commission does not require the disclosure of SSNs as part of the "administration of any tax, general public assistance, driver's license, or motor vehicle registration law." Therefore, the disclosure does not fall within the exception created by the 1976 amendments to the Social Security Act. With respect to section 7(a)(2)(B), neither section
Although the commission's stated justification does not satisfy the section 7(a)(2)(B) exception, we cannot rule out the possibility that the commission may be able to demonstrate that it requires the disclosure of SSNs as part of a system of records that was in existence and operating before January 1, 1975, under some other statute or regulation that was adopted prior to that date to verify the identity of an individual. The commission has been in existence since 1949, and has had the authority to issue and renew licenses since that time. See Acts 1949, 51st Leg., ch. 149, § 1, at 304. If the commission required the disclosure of SSNs as part of its system of records in existence and operating before January 1, 1975, under such a statute or regulation, then the commission is not prohibited under section 7 of the Privacy Act of 1974 from refusing to renew a license on the basis of a licensee's refusal to disclose his or her SSN.
With respect to the second issue, you suggest that the commission and the licensee disagree over the relationship between subsections (a) and (b) of section 7 of the Privacy Act of 1974. Apparently, the commission asserts that subsection (b) is inapplicable when an agency requires the disclosure of an SSN under one of the exceptions listed in subsection (a)(2). The licensee, however, insists that subsection (b) must be read together with the prohibition found in subsection (a).
We agree with the licensee's position. The two subsections have repeatedly been read together to require the disclosure mandated in subsection (b) even when the disclosure falls within one of the exceptions to the prohibition set forth in subsection (a). See, e.g., Greidinger v. Davis,
We do not decide here whether the letter provided to the licensee by the commission comports with the requirements of section 7(b). We do suggest, however, that the commission might want to review the information it provides to licensees regarding the disclosure of SSNs in light of the foregoing authorities. See authorities cited supra; see also Wolman,
In sum, we conclude that if the commission required licensees to disclose SSNs as part of its system of records in existence and operating before January 1, 1975, under a statute or regulation adopted prior to that date to verify the identity of an individual, or if a federal statute requires disclosure of SSNs to the commission, the commission is not prohibited from refusing to renew a license on the basis of a licensee's failure to disclose his or her SSN. Even if the commission is authorized to require the disclosure of an individual's SSN, it must "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."
Very truly yours,
DAN MORALES Attorney General of Texas
JORGE VEGA First Assistant Attorney General
WILL PRYOR Special Counsel
RENEA HICKS State Solicitor
MADELEINE B. JOHNSON Chair, Opinion Committee
Prepared by Mary R. Crouter Assistant Attorney General
[1] Section 408(a)(8) of title 42 of the United States Code makes it a felony to compel disclosure of an SSN in violation of federal law.
[2] As amended by Pub.L.
[3] For example, the commission contends in a letter recently submitted to this office that it required the disclosure of SSNs "to assist in the determination whether applicants or licensees have been convicted of criminal offenses as shown in criminal history records supplied by the Department of Public Safety" and that its application forms required the disclosure of SSNs for this purpose prior to 1975. It also contends that the commission's use of SSNs for this purpose "constitutes a `rule', excepting its required disclosure of [SSNs] from the federal Privacy Act of 1974. Given the state of the law with regard to rulemaking at the time, the Commission's requirements were as binding then as formally adopted requirements are today under present law." The determination whether the commission had a regulation requiring the disclosure of SSNs to verify the identification of individuals prior to January 1, 1975, would involve the resolution of factual matters and is therefore not amenable to the opinion process.
[4] That letter states in pertinent part: "The disclosure is required under the TEXAS REAL ESTATE COMMISSION Rule and the Social Security Number is specifically required in order for this agency to comply with the requirements of Section
marc-alan-greidinger-v-bobby-ray-davis-chairman-john-h-russ-jr , 988 F.2d 1344 ( 1993 )
doris-mcelrath-individually-and-on-behalf-of-her-minor-children-denogya , 615 F.2d 434 ( 1980 )
Yeager v. Hackensack Water Co. , 615 F. Supp. 1087 ( 1985 )
Wolman v. United States , 542 F. Supp. 84 ( 1982 )
Wolman v. UNITED STATES OF AM., SELECTIVE SERVICE SYS. , 501 F. Supp. 310 ( 1980 )
Doyle v. Wilson , 529 F. Supp. 1343 ( 1982 )
Greater Cleveland Welfare Rights Organization v. Bauer , 462 F. Supp. 1313 ( 1978 )