                            QBfficeof tip ~ttornep General
                                    $&dateof Qrxae
QAN MORALES
 Al-r”RSEY
         CESERAL                          January 27.1994
      Honorable Wdlii R. Ratliff                   Opinion No. DM-286
      Ch8il
      Senate Education Committee                   Re: Authority of a state licensing agency to
      P.O. Box 12068                               require the disclosure of social security
      Austin, Texas 78711                          numbers (RQ-614)

      Dear Senator RatW

              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




                                                p. 1522
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 Woimanv. 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 UnitedStatesCede maka it a felonyto am&l dirlosurr of
en SSNio viotationof federallaw. 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         ‘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. 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 lf seq. See Educ. Code Q57.41. 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 pertedsof
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 &section (a).
&e, e.g., Greiabger v. Avis, 782 F. Supp. 1106 (E.D. Va. 1992). rrv’da& mnon&d
(WIdter 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 whetherapplicantsor ticensceshave ken
conviaedofcriminaloffenrarrrbwmiacriminalhidoryr&ordcruppliedbytheDcplucmauofpublic
8afw and h: its applicationform requiredthe dis&muc of SSNsfor this parposeprior 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 requirementswere as binding then as formally whped
reqailwntnts are I&y under praent law.’ l-be demmlnatino wbelbertbt commissioIlbad a regldatinn
m&ring the disclonuc of SSNs IOverifythe i&nIificationof individualspriorto Januwy 1.1975. would
invniw the rcsnhnionnftkmal manerssod is thefort not amenableto 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
