State efforts, court rulings against disclosure of SSN’s

From the Summer 2002 issue of The News Media & The Law, page 37.

The phrase “identity theft” had yet to be coined when Congress passed the Privacy Act of 1974, but concerns about the amount of personal information being collected and distributed had already started influencing public policy.

Although the Privacy Act stopped short of outlawing the use of Social Security numbers, it set the stage for court decisions and legislative measures favoring nondisclosure. Among other things, it required that no government agency, whether federal or otherwise, could deny any right, benefit or privilege because an individual refused to divulge his or her Social Security number.

And, prior to the release of the Social Security number, an individual must be told if it is mandatory or not and how the number will be used.

Despite no explicitly stated right to privacy under the U.S. Constitution, many federal and state courts have either exempted records containing an individual’s Social Security number from disclosure or deleted the Social Security number from a record before its release.

For example, the Ohio Supreme Court in 1994 in Beacon Journal vs. City of Akron ruled that Akron could delete Social Security numbers from computer tape records of the city’s payroll because of an exemption under the state’s public records act that requires disclosure be withheld if it violates state or federal law.

In that case, the court found that the U.S. Constitution guarantees an individual’s right to privacy.

The Akron Beacon Journal brought the case in August 1992 after the city of Akron’s finance director refused to release the city’s master payroll without deleting the Social Security numbers.

Similarly, the Commonwealth Court of Pennsylvania found in the 1995 case Tribune-Review Publishing Co. vs. Allegheny County Housing Authority that requests for payroll records of public employees containing Social Security numbers could be legally denied. The decision was based in part on the federal Privacy Act, which the court found created an expectation of privacy in the minds of public employees.

In 1999, Federal Magistrate Pamela Meade Sargent in Big Stone Gap, Va., found in Doe vs. Herman that the U.S. Department of Labor violated the Privacy Act by releasing the Social Security numbers of claimants for federal black lung benefits.

The Massachusetts Supreme Judicial Court reversed an appellate court’s decision in Wakefield Teachers Association vs. School Committee of Wakefield, holding teachers’ personnel files are exempt from disclosure because they contain information such as home addresses and Social Security numbers.

In addition to court decisions, there have been moves by state legislatures as well as Congress to limit access to Social Security numbers.

A striking and unusual example was a proposal offered in the Connecticut legislature in 2001. The General Assembly’s Program Review and Investigations Committee recommended that the state create a “privacy advocate” whose job would be to protect the confidentiality of personal information — including Social Security numbers — given to state agencies.

Also in 2001, a Wisconsin bill offered by the state Assembly’s Committee on Personal Privacy sought to prevent disclosure of public records that contained Social Security numbers. The bill died in the Senate.

In Georgia, an amendment to Georgia’s public disclosure laws was enacted by the General Assembly in 2001. It requires a reporter to sign and notarize a sworn affidavit attesting to the fact that he or she is a representative of a newsgathering agency before being given an individual’s date of birth or Social Security number. The law also places restrictions on the use of the information obtained, such as barring reporters from printing Social Security numbers.

A proposed bill in the state of Washington would prevent an individual or an organization from publishing or distributing the personal information — including Social Security numbers — of law enforcement officers.

This year in Florida, a grand jury, in response to fears over identity theft, recommended that Florida’s open records law be changed to, among other things, keep Social Security numbers out of the public domain. The state also saw the passage of House Bill 1673, which only allows groups or individuals to access Social Security numbers if it is for “commercial activity.” Such activity includes reporting. The state Senate is still considering the measure.

On the federal level, the Driver’s Privacy Protection Act passed in 1994 prohibits states from releasing certain information contained on a person’s driver’s license and motor vehicle record, such as that individual’s Social Security number.

In 2000, the U.S. House Ways and Means Committee approved legislation that would make it a crime for governments and businesses to buy or sell Social Security numbers. The bill was created to combat identity theft and, as of yet, no further action has been taken.

And in 2002, a number of so-called privacy measures have been proposed in Congress.

But only the Privacy Act of 2001, which would require an individual’s consent before information such as the individual’s Social Security number could be sold, has received a hearing. — KC