QAN MORALES 

Al-r”RSEY CESERAL 

QBffice of tip ~ttornep 

$&date of Qrxae 

January 27.1994 

General 

Honorable Wdlii R. Ratliff 

Ch8il 

Senate Education Committee 

P.O. Box 12068 

Austin, Texas 78711 

Dear Senator RatW 

Opinion No. DM-286 

Re: Authority of a state licensing agency to 

require the disclosure of social security 

numbers (RQ-614) 

You state that you request Warification of the law relating to the disclosure of 

social security numbers.’ By way of background, you explain that the Texas Real Estate 

Commission (the “commimion”) has requested the social secutity number (“SSW) 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 prohiits state 

agencies from denying an individual any “tight, benefit, or privilege” for refusing to 

divulge his or her SSN. See 5 U.S.C. 5 552.a note (Act of Dec. 31, 1974, P.L. 93-579, 

8 7.88 stat. 1909). 

Section 7 of the Privacy Act of 1974 provides: 

(a)(l) It shag 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 relbsal 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 iocal agency maintaining a system of records in 

existence and operating before January I, 1975, if such disclosure 

was required under staMe 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 

shag inform that individual whether that disclosure is mandatory or 

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Honorable Wm R Rathff - Page 2 (DM-286) 

vohmtary, by what statutory or other authority such number is 

solicitet& and what uses will be made of it.’ [Footnote added.] 

Section 7 bas been interpreted by fedeml courts to absolutely prohii any federal, state or 

~&!o=m’n ent agency from denying an indiidual any right, benefit or privilege 

provided by law for retbsing to disclose his or her SSN, except in the limited 

circumstances delineated in subsection (a)(2). See, e.g., Greidinger v. Davis, 988 F.2d 

1344, 1353 (4th Cii. 1993) (“This Act makes it unlawful for a governmental agency to 

deny a right, benefit, or privilege merely because the individual refuses to disclose his 

SSN”); Dcyle v. Wilson, 529 F. Supp. 1343, 1348 (D. Del. 1982) (“Section 7 of the 

Privacy Act broadly prohibits a state from penalking an individual in any way because of 

his fbilure to reveal his social security number upon rqua except in cut&t namxvly 

deSnedcir cumstances”). It has also been interpreted to require such go vemme-nt agencies 

to provide certain information when requesting an individual to disclose his or her SSN. 

See. e.g., Greidinger, 988 F.2d at 1353; Doye, 529 F. Supp. at 1349 (section 7(b) 

reqhes a govemmmt agemy to disclose whether the disdosum is mandatory or 

vohmtmy, by what staMe or other authority the SSN is solicited, and what uses will be 

made of it). 

Your inquiry requires us to first consider whether the commission!, request for the 

bnsee’s SSN ffi within any of the exceptions set forth in subsection (a)(2) of section 7. 

Ifitisroaccepted,thentheti~srrfusaltoprovidehisSSNmrybeabrPisfor 

denying a right, beneiit or privilege, in this case the renewal of his license. Your iquiry 

also requires us to consider whether a govemment agency’s request for an SSN which is 

~cepted under subsection (a)(2) must be nevertheless accompanied by the information set 

forth in subsection (b). 

Subsection (a)(2)(A) of section 7 pent& a govemmem agency to require 

disclosure of an SSN only if the disclosure is required by a federal statute, such as 

selective w-vices laws, see Woiman v. UnitedStates, 542 F. Supp. 84 (D.D.C. 1982). and 

the Aid to Families with Dependent Children provisions of the Social Security Act, see 

McHrath v. Califano. 615 F.2d 434 (7th Cir. 1980). for example. Subsection (a)(2)(B) 

permits a government agency to require disclosure of an SSN only if (i) the agency 

requires the disclosure as part of its maintenance of a system of records in existence and 

operating before January 1, 1975 and (ii) the disclosure was rquired under a statute or 

regulation adopted prior to that date to verity the identity of an individual. To fag within 

this exception, it is not sufficient that an agency followed a practice of collecting SSNs 

prior to January 1. 1975. unless a statute or regulation required the practice in direct 

terms. Doyle, 529 F. Supp. at 1349 (“Administrative practice alone, however, 

%aaio~ 408(a)(8) of title 42 of the United States Cede maka it a felony to am&l dirlosurr of 

en SSN io viotation of federal law. 42 U.S.C. 8 408(a)(8). 

p. 1523 
Honorable Wti R RatliE - Page 3 (nt+286) 

unsupported by any discrete legal grant of authority, is not enough to sati@ the 

tquirements of section 7(a)“) (citing Wohan v. hi&d Srufes, 501 F. Supp. 3 10, 3 11 

(D.D.C. 1980)). 

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 sny State (or 

political subdivision thereof) may, in the administmtion of eny tax, 

general public assistance, driver’s license, or motor vehicle 

registration law within its jurisdiction. utihze 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 lb&h such social securi@ account 

-1. 

. . . . 

(v) For purposes of clause (i) of this subpamgraph, 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 sea&y 

number account number for identification under a law or regukion 

adopted wore Janualy 1.1975. may require an individual to disclose 

hisorher~reayitynumbatoruchrgeacy~lelyf~the 

purpoteofilbninistaingthelawsnfaredtoinclue~)~. . . . 

42 U.S.C. 0 405(c)(2)(C). Thus, under this provision, a g ovemment rgw ‘n8Y resuire 

the disclosure of an SSN in the “administration of any tax, general public assistance, 

driver’s license, or motor vehicle registration law” even if the government agency did not 

use SSNs for identification purposes under a statute or regulation adopted prior to 

Januar I, 1975. See Doyle, 529 F. Supp. at 1349. 

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. Ina 

letter to tire licensee, the commission indicates that it is required to obtain licensees’ SSNs 

by section 57.491 of the Education Code, a provision adopted in 1989 by the 71st 

Legislature. See Acts 1989,7lst Leg., ch. 985, 0 16, at 4063.4968. Generally. section 

57.491 provides that a state agency such as the commission may not renew the license of a 

licensee who is in default on a student loan guaranteed by the Texas Guaranteed Student 

Loan Corporation unless the licensee either pays the guaranteed student loan or enters into 

a repayment agreement on the defaulted loan. To comply with the mandate of section 

p. 1524 
Honorable Wti R Ratliff - Page 4 (DM-286) 

57.491. the commission has adopted an administmtive rule which provides in pertinent 

part as follows: 

Ratewakoflicensesissuedbythecommissionareaubjecttothe 

policies established by the Texas Education Code, 0 57.491. B&on 

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. 

22 T.A.C. 0 535.95(c). 

We~uMwarrofrnyfedenl~thatrequiresrtate~~agenciesruch~ 

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 

Bduation Act of l%S. 20 U.S.C. $1001 l f seq. See Educ. Code Q 57.41. The federal 

provisions governing guaranteed student loans, see geneml& 20 U.S.C. 0 107Oa et seq. 

(Subchapta IV-Student Assistance), require borrowers to disclose their SSNs when they 

apply for loans and when they leave school. See 20 U.S.C. 55 1091(a)(4) (requiring 

borrower to provide SSN to school or lender), 1091(q) (requiring wcmtary of education 

to ve@ student SSN). 1092@)(2)(A)(iiP (requiring borrower to notify schools or lender 

of any change in SSN upon leaving school). But we have been unable to identify any 

federal provision requiring state licensing agencies, such as the commission, to require 

licensees to disclose their SSNs. Therefo~ it is not apparent to us that the commission’s 

request for licensees’ SSNs is excepted by section 7(a)(Z)(A) of the Privacy Act of 1974. 

Furthermore, we have no basis for concluding that the disclosure is excepted by 

section 7(a)(Z)(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.” The&ore, the disclosure does not fall within the exception created by 

A ;Gi antcndments to the Social Security Act. With respect to section 7(a)(2)(B). 

neither section 57.491 of the Education Code nor the commission’s rule expressly requires 

the disclosure of a licensee’s SSN to renew a license. Moreover, neither provision was 

‘As ameodal by Pub. L. 102-325. Title Iv. 00 486@). 498(S) (effecli~ with nxpcct to perteds of 

awllmcnt tcginning on or afkr July 1.1993). 

p. 1525 
Honorable Wh R IMiff - PaSe 5 GM-286) 

adopted prior to January I.1975 to verify the identity of an individual. Therefore, these 

provisions do not bring the disclosure within the section 7(a)(Z)(B) exception. 

Although the wmmission’s stated justiSation does not sati@ the section 

7(aXZXB) uception, we cannot rule out the possiiity 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 

kenses since that time. See Acts 1949.5lst Leg., ch. 149,s 1, at 304. Jfthe 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 regdation, then the commission is not 

prohibited under section 7 of the Privacy Act of 1974 from rehsirg to renew a license on 

the basis of a licensee’0 rcfbsal to disclose his or her SSN.) 

Withrupeatothesecond~e,ywnrggestthatthecommi~onurdthelicensa 

diqree 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 brapplicable 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 

diSCl0sum tills within one of the exceptions to the prohibition set forth in §ion (a). 

&e, e.g., Greiabger v. Avis, 782 F. Supp. 1106 (E.D. Va. 1992). rrv’da& mnon&d 

(WI dter grow&, 988 F.2d 1344 (4th Cir. 1993); Yeager v. Hackensrzck Wafer Co., 615 

F. Supp. 1087 (D.N.J. 1985); Lkyie, 529 F. Supp. 1343 supna. In Greidingw, 782 F. 

Supp. 1106, for example, the state of Virginia requested individuals to disclose their SSNs 

as a prerequisite to registering to vote. This disclosure was exempt under section 

7(a)(2)(B) of the act, but the state was still required to comply with section 7(h). The 

court in Yeager, 615 F. Supp. 1087. stated “the disclosure of social security numbers 

3For example, UK ccmmissica contends in a letter rccentty sahmittat to this &ice that it 

.yY;.ui iis diirciwt of SSNs Yo assist in the &terminstica whether applicants or ticensces have ken 

conviaedofcriminaloffenrarrrbwmiacriminalhidoryr&ordcruppliedbytheDcplucmauofpublic 

8afw and h: its application form required the dis&muc of SSNs for this parpose prior to 1975. II 

also contends chat tk canmision’s we of SSNs for this pwpxc ‘coasti~ a ‘I&‘, except& tts 

resuirea~d(SSNs]fromthefcdcrslRivacyMofl974. Givaathcu#oftbclawtithregard 

to ndamakiq at the time, Ux Commiion’s requirements were as binding then as formally whped 

reqailwntnts are I&y under praent law.’ l-be demmlnatino wbelber tbt commissioIl bad a regldatinn 

m&ring the disclonuc of SSNs IO verify the i&nIification of individuals prior to Januwy 1.1975. would 

invniw the rcsnhnion nftkmal maners sod is thefort not amenable to the opinion process. 

p. 1526 
Honorable Williun R Ratliff - Pw 6 (Dt+286) 

annot be wmpdled without compliance with section 7(b) of the Privacy Act.” 615 F. 

Supp. at 1991. Sii, in Doye, 529 F. Supp. 1343, the court noted that even ifthe 

Delaware Treasmw’s practice of requiring the disclosure of SSNs was excepted by the 

1976 MQdmentL to the Social Security Act, it doubted “that in requiring the disclosure 

of social security numbers as a matter of course, the State Treasurer has complied with the 

tquirements of section 7(b).” D@e, 529 F. Supp. at 1350. The court further explained, 

“adequate explanations of the information required by section 7(b) is critical to the right 

afForded by section 7(a) to withhold disclosure of the social security number, except in 

limited circumstancu.” Id. 

We do not decide here whether the letter provided to the licensee by the 

comntission comports with the requirements of section 7(b).* We do suggest, however, 

thuthecommissionmigbtwrnttorrviewtheinformationitprovidestolicawes 

mgarding the disclosure of SSNs in light of the foregoing authorities. Scr authorities cited 

m, see a&o Wd, 501 F. Supp. at 312 (decking form requiting tbe disclosure of 

mSSN~~totbeartentthtitrtrtedthtdirclonrnms~torywhenaokw 

provided for mandatory disclosure); *a&r CIcwlrmd We&re RighB Org. v. Boner, 462 

F. Supp. 1313. 1321 @I.D. Ohio 1978) (conch&i that section 7(b) requires meanb@d 

disclosMe). In infomling licensees mgardhg the uses which will be made of their SSNs, 

tbe commission might also consider whether any such SSN will be subject to public 

disclosMeundertheopenRewrdsAct,- Code chapter 552. See Open 

Records Decision No. 622 (1994). 

In sum, we conclude that iftbe commission requited licensees to disclose SSNs as 

part of its system of records in existence and opemting before January 1.1975. under a 

~tuteor~on~o~~priortotht&tetovaitjrthidentityof~individurl,orif 

a fbderd UaMe requires disclosure of SSNs to the commissi~ tbe commission is not 

prohibited~~torarewalianreonthebuisofalicauecs~~todirclore 

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 bc made ofit.” 5 U.S.C. 8 552a note. 

p. 1527 
Honorable Wti R RatlitT - Page 7 @M-286) 

SUMMARY 

Under the federal Privacy Act of 1974, 5 U.S.C. 8 552a note 

(Act of Dec. 31, 1974, P.L. 93-579, 5 7. 88 Stat. 1909). the Texas 

Real Estate Commission may not refuse to renew a license because 

of the licensee’s failure to disclose his or her social security number 

unless (i) the disclosure is required by a federal statute or (ii) the 

commission uses the infortnation in a system of records in existence 

and operating before January 1, 1975, under a statute, or regulation 

adopted prior to that date to verity the identity of an individual. 

Even if the commission is authorized to tquire the disclosure of an 

individual’s SSN, it must “inform that individual whetha that 

disclosure is mandatory or voluntary, by what statutory or other 

authority such mmlber is solicited, and what uses will be made of it.” 

5 U.S.C. 8 552a aote. 

DAN MORALES 

Attorney Geaeral of Texas 

JORGE VEGA 

Fti Assistant Attorney Genera) 

WlLL PRYOR 

SpGOidCOUMCl 

RENEAHICRS 

State Solicitor 

hIADELElNE B. JOHNSON 

Chair, Opinion Committee 

Prepared by Mary R Cmutff 

Assistant Attorney General 

p. 1528