QAN MORALES

Al-r”RSEY CESERAL 

# QBffice

oftip ~ttornep $&date ofQrxae 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.anote (Act of Dec. 31, 1974, P.L. 93-579, 87.88 stat. 1909). Section 7 ofthe Privacy Act of 1974provides: (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 isrequired 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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vohmtary, by what statutory or other authority such number is solicitet&and what uses willbe made ofit.’ [Footnote added.]
Section 7bas 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., Greidingerv. 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 govemme-ntagencies 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 ofit).

Your inquiry requires us to first consider whether the commission!, request for the bnsee’s SSN ffi within any ofthe 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’srequest 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-viceslaws, see Woiman v. UnitedStates,542F. 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)oftitle42oftheUnitedStates Cedemaka itafelonytoam&l dirlosurr of enSSNioviotationoffederallaw.42U.S.C. 8408(a)(8).

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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. 310, 311 (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 inpertinent 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 ofclause (i) ofthis 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. 0405(c)(2)(C). Thus, under this provision, a govemment rgw ‘n8Yresuire 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. SeeDoyle, 529F. 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

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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 alicense.
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 fseq. See Educ. Code Q 57.41. The federal provisions governing guaranteed student loans, see geneml& 20 U.S.C. 0 107Oaet 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 schoolsor 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 isexcepted by section 7(a)(Z)(A)ofthe 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

‘AsameodalbyPub.L. 102-325.TitleIv. 00486@).498(S)(effecli~withnxpccttoperteds of awllmcnt tcginning onorafkrJuly1.1993).

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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 hasbeen 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 ofits 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 ofthe Privacy Act of 1974 from rehsirg to renew a license on the basis of alicensee’0rcfbsal 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’sposition. 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, 782F. Supp. 1106 (E.D. Va. 1992). rrv’da& mnon&d (WI dter grow&, 988F.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 ofVirginia 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

3Forexample,UKccmmissicacontendsin a letterrccenttysahmittat to this &ice that it .yY;.ui iis diirciwt ofSSNsYoassistinthe&terminsticawhetherapplicants orticensces

haveken conviaedofcriminaloffenrarrrbwmiacriminalhidoryr&ordcruppliedbytheDcplucmauofpublic 8afw andh: itsapplication form required

thedis&mucofSSNs

forthisparposepriorto 1975. II also contendschattk canmision’s we of SSNsfor this pwpxc ‘coasti~ a ‘I&‘, except& tts resuirea~d(SSNs]fromthefcdcrslRivacyMofl974. Givaathcu#oftbclawtithregard to ndamakiq at the time, Ux Commiion’s requirements wereas bindingthen asformallywhped reqailwntntsareI&y underpraent law.’ l-bedemmlnatinowbelber tbt commissioIl

bada regldatinn m&ring thedisclonucofSSNsIO verifythei&nIification

ofindividuals

prior toJanuwy1.1975. would invniw thercsnhnion

nftkmal manerssodisthefort notamenable totheopinionprocess.

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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 ofcourse, the State Treasurer has complied with the tquirements of section 7(b).” D@e, 529F. 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 SSNsinlight ofthe 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.” 5U.S.C. 8 552a note.

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## SUMMARY

Under the federal Privacy Act of 1974, 5 U.S.C. 8 552a note (Act of Dec. 31, 1974, P.L. 93-579, 57. 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.” 5U.S.C. 8552a 

### aote.

DAN MORALES Attorney Geaeral ofTexas

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

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