Public Disclosure of Social Security Numbers on Voter Registration Application Cards

Reply To: Susan K. Nichols Administrative Division (tele) 919-716-6800 (fax)919-716-6755

June 24, 1999

Gary O. Bartlett Executive Secretary-Director State Board of Elections

P.O. Box 2169 Raleigh, NC 27602

Re: Advisory Opinion; Public Disclosure of Social Security Numbers on Voter Registration Application Cards; Privacy Act of 1974, Section 7 (5 U.S.C.A. § 552a (note))

Dear Mr. Bartlett:

You have asked on behalf of the State Board of Elections for an opinion on whether social security account numbers appearing on voter registration application cards maintained in the offices of county boards of elections must be kept confidential. It is our understanding that social security account numbers have never been required of voters by either statute, rule or directive of the State Board of Elections. In particular, voter registration application cards supplied by the State Board of Elections have never required the applicant to supply their social security account number. Nevertheless, some counties as late as the early 1990’s provided a space for supplying a social security account number on voter registration application cards printed by the counties. Even if a space was not provided on the cards for a social security account number, registrars apparently sometimes requested the information because such numbers are sometimes found handwritten on registration cards with no request for the number evident. Where social security account numbers appear on voter registration application cards, there are no accompanying instructions to the applicant printed on the cards. You have no information suggesting that counties distributed instructions disclosing the authority for requesting social security account numbers or the uses which would be made of the numbers.

Voter registration application cards are kept on file in the office of the county board of elections for the county in which the voter resides and are the voter’s official registration record.

N.C. Gen. Stat. § 163-82.10. These cards are public records under N.C. Gen. Stat. § 132-1. The information on the cards is also included in a computer data base because every county has computerized its county voter registration records. Counties are required to supply lists of registered voters upon request of any person and may supply selective lists according to any reasonable category. N.C. Gen. Stat. § 163-82.10(b). The State Board of Elections will also supply lists from the statewide computerized voter registration file when it is activated. N.C. Gen. Stat. § 163-82.13.

Mr. Bartlett June 24, 1999 Page 2

Section 7 of the Privacy Act of 1974, adopted by the United States Congress, 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.

(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.

5 U.S.C.A. § 552a(note)(Act of Dec. 31, 1974, P.L. 93-579, § 7, 88 Stat. 1909).

In addition, the following language in 42 U.S.C. § 405(c)(2)(C) protects the confidentiality of social security account numbers:

(viii)(I) Social security account numbers and related records that are
obtained or maintained by authorized persons pursuant to any provision of law
enacted on or after October 1, 1990, shall be confidential, and no authorized
person shall disclose any such social security account number or related
record.

42 U.S.C. § 405(c)(2)(C)(viii)(I).

These statutes make clear a federal policy favoring the confidentiality of social security account numbers. These and similar provisions have been interpreted in several cases, two of which are particularly pertinent. In Greidinger v. Davis, 988 F.2d 1344 (4th Cir. 1993), the Fourth Circuit Court of Appeals reviewed a challenge to Virginia’s requirement that a person seeking to register as Mr. Bartlett June 24, 1999 Page 3

a voter supply his social security number. The plaintiff did not challenge Virginia’s receipt and internal use of his social security number, but he did challenge dissemination of the number to the public under Virginia’s statutes making available voter registration lists. The Court noted that “the harm that can be inflicted from the disclosure of a [social security number] to an unscrupulous individual is alarming and potentially financially ruinous.” Id. at 1354. The Court concluded that to the extent Virginia’s statutes permitted the public disclosure of Greidinger’s [social security number] as a condition of his right to vote, it creates an intolerable burden on that right as protected by the First and Fourteenth Amendments.” Id. at 1355. The case was remanded to allow Virginia to cure the constitutional infirmity by either deleting the requirement that an applicant for voter registration supply a social security number or by eliminating the use of these numbers “in voter registration records open to public inspection and contained in voter registration lists provided to candidates” and others. Id.

A second case dealt with how a local government agency should handle records which improperly obtained social security account numbers. In Yeager v. Hackensack Water Co., 615 F.Supp. 1087 (D. N.J. 1985), a private water company acting under state directive obtained social security numbers without complying with the disclosure requirements of the Privacy Act of 1974 set forth in § 7(b) above. The court held:

The proposed use to which Hackensack would put its customers’ social security numbers is not per se impermissible. Defendants erred, however, by failing to comply with the disclosure requirements of section 7(b) of the Privacy Act. Accordingly, the relief sought should be tailored to enable plaintiffs and others to make an informed, knowing and educated decision. At the same time, the court believes that a significant amount of time and money would be wasted if it were to compel destruction of the information already gathered.

Therefore, the following relief — as to social security numbers only -is granted. Defendants must retroactively comply with the disclosure requirements of section 7(b) of the Privacy Act. Plaintiffs, and others from whom Hackensack has solicited social security numbers, must be informed of the voluntariness of the disclosure, the source of the authority for it, and the possible uses to which the disclosed number might be put. Until such time as this disclosure is accomplished, defendants are required to safeguard the information gathered and are enjoined from disseminating to anyone by any

Mr. Bartlett June 24, 1999 Page 4

means the social security numbers provided without the disclosure required by section 7(b) of the Privacy Act.

615 F.Supp. at 1091-92.

It is our conclusion that social security account numbers obtained since 1974 without the disclosure required by the Privacy Act of 1974, may not be disseminated to any member of the public. Since January 1, 1975, any state or local government agency requesting social security numbers had to comply with disclosure requirements. The information available to you suggests that no such disclosure was provided to applicants for voter registration. Thus, we conclude that the numbers may not be disclosed to the public.

The two cases cited above suggest that the State Board of Elections should develop a plan to assure that social security account numbers on voter registration records maintained by the county boards of elections are kept confidential. The cases also suggest that the State Board could choose to direct county boards to delete social security numbers from any computer-generated lists, to request those who executed cards without requisite disclosure and provided social security numbers to execute new cards which would become the official voter registration record, or to direct that counties redact social security numbers from any cards before they are publicly disclosed. The precise plan is within the discretion of the State Board of Elections and the Executive Secretary-Director, but the remedy chosen must assure that social security account numbers of registered voters are not disseminated to the public for those voters who registered on or after January 1, 1975. Given that the statutes and courts recognize the desirability of maintaining the confidentiality of social security account numbers, and that considerable financial and related harm may come to individuals because of their disclosure, it would be prudent to take steps to maintain the confidentiality even of those numbers obtained before the enactment of the Privacy Act of 1974.

Sincerely,

Ann Reed Senior Deputy Attorney General

Susan K. Nichols

Special Deputy Attorney General SKN/cwh