Can a Texas licensing board make you give your Social Security number to renew your license?

Plain-English summary

The Texas Real Estate Commission asked a licensee for his Social Security number, and he refused, pointing to section 7 of the federal Privacy Act of 1974. That law makes it unlawful for a government agency to deny anyone a right, benefit, or privilege for refusing to disclose a Social Security number, with narrow exceptions. The chair of the Senate Education Committee asked the Attorney General whether a state licensing agency could require licensees to disclose their numbers.

The office concluded that the Privacy Act's general bar applied unless the request fit one of two exceptions: (A) disclosure required by a federal statute, or (B) the agency was using the number in a system of records that existed and operated before January 1, 1975, under a statute or regulation adopted before that date to verify identity (a category Congress effectively widened in 1976 for tax, public assistance, driver's license, and motor vehicle registration programs). The commission said it needed the number to enforce Education Code section 57.491, which blocks renewing the license of someone in default on a guaranteed student loan. The office found that basis did not fit either exception: no federal statute required state licensing agencies to collect licensees' numbers (the federal student-loan rules require borrowers, not licensing agencies, to give them), and neither section 57.491 nor the commission's rule was adopted before 1975 or expressly required the number. The office could not rule out that the commission might show some other pre-1975 statute or rule supported its practice, but that turned on facts it could not resolve. Separately, the office agreed with the licensee that even when an exception applies, the agency must still comply with section 7(b): it must tell the person whether disclosure is mandatory or voluntary, the authority for the request, and the uses of the number. The office did not decide whether the commission's notice letter actually satisfied section 7(b), and it noted that a collected number might itself be subject to release under the Open Records Act.

Currency note

This opinion was issued in 1994. Subsequent statutory amendments, court decisions, or later AG opinions may have changed the analysis. Treat this page as historical context, not current legal advice. Verify current law before relying on any specific rule, deadline, or remedy mentioned here.

Section 7 of the federal Privacy Act of 1974 still governs when a government agency may condition a benefit on Social Security number disclosure, but federal and Texas law on when licensing agencies may collect those numbers has changed since 1994, and the Texas student-loan-default renewal statute (Education Code section 57.491) and the commission rule cited here have been amended. Read this page for the office's framework under the Privacy Act, not for the current rules on who must give a number.

What the opinion meant for those who asked

For the Texas Real Estate Commission and other state licensing agencies: The opinion concluded that, under the Privacy Act of 1974, the commission could not refuse to renew a license solely because the licensee declined to give a Social Security number, unless a federal statute required the disclosure or the commission used the number in a pre-1975 records system under a pre-1975 statute or rule adopted to verify identity. It found the commission's stated reliance on the student-loan-default statute did not meet either exception.

For licensees and license applicants: The opinion treated the Privacy Act as protecting a licensee who refuses to disclose a number, subject to those narrow exceptions, and held that even when an exception applies, the agency must still give the section 7(b) notice (mandatory or voluntary, the authority, and the uses).

On the questions the office did not decide: The opinion expressly declined to decide two fact-bound questions: whether the commission in fact had a pre-1975 regulation requiring the number to verify identity (a factual matter not amenable to the opinion process), and whether the commission's notice letter to the licensee actually complied with section 7(b).

Common questions

Can a Texas licensing agency refuse to renew a license if you won't give your Social Security number?
Generally no, under this opinion. The office concluded the Privacy Act of 1974 barred that, unless a federal statute required the disclosure or the agency used the number in a records system that existed and operated before January 1, 1975 under a pre-1975 statute or rule adopted to verify identity.

Did the student-loan-default law let the commission demand the number?
The office concluded it did not satisfy the Privacy Act exceptions. No federal statute required the commission to collect licensees' numbers, and Education Code section 57.491 and the commission's rule were neither adopted before 1975 nor expressly required the number.

If an exception applies, can the agency just collect the number quietly?
No. The office agreed with the licensee that section 7(b) applies even when an exception applies, so the agency must tell the individual whether disclosure is mandatory or voluntary, the statutory or other authority for the request, and how the number will be used.

Could a Social Security number the commission collected become public?
The opinion noted that question. It suggested the commission consider, in describing the uses of the number, whether the number would be subject to disclosure under the Open Records Act, citing Open Records Decision No. 622 (1994).

Background and statutory framework

Section 7 of the federal Privacy Act of 1974 (5 U.S.C. § 552a note) makes it unlawful for any federal, state, or local agency to deny an individual a right, benefit, or privilege because the individual refuses to disclose a Social Security number, except: (A) where disclosure is required by federal statute, or (B) where the disclosure is to an agency maintaining a system of records in existence and operating before January 1, 1975, if the disclosure was required under a statute or regulation adopted before that date to verify identity. Section 7(b) separately requires an agency that requests a number to tell the individual whether disclosure is mandatory or voluntary, the authority for the request, and the uses to be made of the number. Federal courts have read section 7 to broadly bar penalizing an individual for refusing to disclose a number outside those narrow exceptions, and to require the section 7(b) information (Greidinger v. Davis, 988 F.2d 1344 (4th Cir. 1993); Doyle v. Wilson, 529 F. Supp. 1343 (D. Del. 1982)). A 1976 amendment to the Social Security Act (42 U.S.C. § 405(c)(2)(C)) effectively expanded exception (B) for state agencies administering any tax, general public assistance, driver's license, or motor vehicle registration law.

Applying that framework, the office worked through the exceptions. Exception (A): although the federal guaranteed student loan provisions require borrowers to disclose their numbers (20 U.S.C. §§ 1091(a)(4), 1091(q), 1092(b)(2)(A)(ii)), the office found no federal statute requiring state licensing agencies to require licensees to disclose theirs, so the commission's request did not appear to be excepted by section 7(a)(2)(A). The 1976 Social Security Act amendment did not help, because the commission was not administering a tax, public assistance, driver's license, or motor vehicle registration law. Exception (B): neither Education Code section 57.491 (adopted in 1989 to bar renewing the license of a student-loan defaulter) nor the commission's rule, 22 T.A.C. § 535.95(c), expressly required the number, and neither was adopted before January 1, 1975, so they did not bring the request within section 7(a)(2)(B). The office could not rule out that the commission, which has existed since 1949, might show that some other pre-1975 statute or regulation supported a pre-1975 records system, but said that determination involved fact questions outside the opinion process. On the second question, the office agreed with the licensee that subsections (a) and (b) are read together, so the section 7(b) notice is required even when an exception to the section 7(a) prohibition applies (Greidinger v. Davis, 782 F. Supp. 1106 (E.D. Va. 1992); Yeager v. Hackensack Water Co., 615 F. Supp. 1087 (D.N.J. 1985); Greater Cleveland Welfare Rights Org. v. Bauer, 462 F. Supp. 1313 (N.D. Ohio 1978)). It declined to decide whether the commission's letter complied with section 7(b), and flagged the Open Records Act (Gov't Code ch. 552) as bearing on the "uses" disclosure.

Citations

Federal and state provisions discussed:

• 5 U.S.C. § 552a note (Privacy Act of 1974, § 7; Act of Dec. 31, 1974, P.L. 93-579, 88 Stat. 1909)
• 42 U.S.C. § 405(c)(2)(C) (1976 Social Security Act amendment); § 408(a)(8) (felony to compel SSN disclosure in violation of federal law)
• 20 U.S.C. §§ 1001 et seq. (Higher Education Act of 1965); 1070a et seq.; 1091(a)(4), 1091(q), 1092(b)(2)(A)(ii) (guaranteed student loan SSN requirements)
• Education Code §§ 57.41, 57.491 (Texas Guaranteed Student Loan Corporation; license renewal and student-loan default)
• 22 T.A.C. § 535.95(c) (Texas Real Estate Commission rule)
• Gov't Code ch. 552 (Open Records Act); Open Records Decision No. 622 (1994)

Cases discussed:

• Greidinger v. Davis, 988 F.2d 1344 (4th Cir. 1993)
• Greidinger v. Davis, 782 F. Supp. 1106 (E.D. Va. 1992)
• Doyle v. Wilson, 529 F. Supp. 1343 (D. Del. 1982)
• Yeager v. Hackensack Water Co., 615 F. Supp. 1087 (D.N.J. 1985)
• Wolman v. United States, 542 F. Supp. 84 (D.D.C. 1982); 501 F. Supp. 310 (D.D.C. 1980)
• McElrath v. Califano, 615 F.2d 434 (7th Cir. 1980)
• Greater Cleveland Welfare Rights Org. v. Bauer, 462 F. Supp. 1313 (N.D. Ohio 1978)

Source

• Landing page: https://www.texasattorneygeneral.gov/opinions/dan-morales/dm-0286
• Original PDF: https://www.texasattorneygeneral.gov/sites/default/files/opinion-files/opinion/1994/dm0286.pdf

Original opinion text

Best-effort transcription from a scanned PDF. Minor errors may remain — the linked PDF is authoritative.

Office of the Attorney General
State of Texas

DAN MORALES
ATTORNEY GENERAL

January 27, 1994

Honorable William R. Ratliff
Chair
Senate Education Committee
P.O. Box 12068
Austin, Texas 78711

Opinion No. DM-286

Re: Authority of a state licensing agency to require the disclosure of social security numbers (RQ-614)

Dear Senator Ratliff:

You state that you request clarification of the law relating to the disclosure of social security numbers. By way of background, you explain that the Texas Real Estate Commission (the "commission") has requested the social security number ("SSN") 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 prohibits state agencies from denying an individual any "right, benefit, or privilege" for refusing to divulge his or her SSN. See 5 U.S.C. § 552a note (Act of Dec. 31, 1974, P.L. 93-579, § 7, 88 Stat. 1909).

Section 7 of the Privacy Act of 1974 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.

(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 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.[Footnote 1]

Section 7 has been interpreted by federal courts to absolutely prohibit any federal, state or local government agency from denying an individual any right, benefit or privilege provided by law for refusing 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 Cir. 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"); Doyle v. Wilson, 529 F. Supp. 1343, 1348 (D. Del. 1982) ("Section 7 of the Privacy Act broadly prohibits a state from penalizing an individual in any way because of his failure to reveal his social security number upon request except in certain narrowly defined circumstances"). It has also been interpreted to require such government agencies to provide certain information when requesting an individual to disclose his or her SSN. See, e.g., Greidinger, 988 F.2d at 1353; Doyle, 529 F. Supp. at 1349 (section 7(b) requires a government agency to disclose whether the disclosure is mandatory or voluntary, by what statute 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's request for the licensee's SSN falls within any of the exceptions set forth in subsection (a)(2) of section 7. If it is not accepted, then the licensee's refusal to provide his SSN may be a basis for denying a right, benefit or privilege, in this case the renewal of his license. Your inquiry also requires us to consider whether a government agency's request for an SSN which is excepted under subsection (a)(2) must be nevertheless accompanied by the information set forth in subsection (b).

Subsection (a)(2)(A) of section 7 permits a government agency to require disclosure of an SSN only if the disclosure is required by a federal statute, such as selective services laws, see Wolman v. United States, 542 F. Supp. 84 (D.D.C. 1982), and the Aid to Families with Dependent Children provisions of the Social Security Act, see McElrath 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 required under a statute or regulation adopted prior to that date to verify the identity of an individual. To fall 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, unsupported by any discrete legal grant of authority, is not enough to satisfy the requirements of section 7(a)") (citing Wolman v. United States, 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 in pertinent part:

(i) It is the policy of the United States that any State (or political subdivision thereof) may, in the administration of any tax, general public assistance, driver's license, or motor vehicle registration law within its jurisdiction, utilize 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 furnish such social security account number].

. . . .

(v) For purposes of clause (i) of this subparagraph, 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 security account number for identification under a law or regulation adopted before January 1, 1975, may require an individual to disclose his or her social security number to such agency solely for the purpose of administering the laws referred to in clause (i) . . . .

42 U.S.C. § 405(c)(2)(C). Thus, under this provision, a government agency may require 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 January 1, 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. In a letter to the 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, 71st Leg., ch. 985, § 16, at 4063, 4068. 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 57.491, the commission has adopted an administrative rule which provides in pertinent part as follows:

Renewals of licenses issued by the commission are subject to the policies established by the Texas Education Code, § 57.491. Before 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. § 535.95(c).

We are unaware of any federal law that requires state licensing agencies such as 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 Education Act of 1965, 20 U.S.C. § 1001 et seq. See Educ. Code § 57.41. The federal provisions governing guaranteed student loans, see generally 20 U.S.C. § 1070a et seq. (Subchapter IV--Student Assistance), require borrowers to disclose their SSNs when they apply for loans and when they leave school. See 20 U.S.C. §§ 1091(a)(4) (requiring borrower to provide SSN to school or lender), 1091(q) (requiring secretary of education to verify student SSN), 1092(b)(2)(A)(ii)[Footnote 2] (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. Therefore, it is not apparent to us that the commission's request for licensees' SSNs is excepted by section 7(a)(2)(A) of the Privacy Act of 1974.

Furthermore, we have no basis for concluding that the disclosure is excepted by section 7(a)(2)(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." Therefore, the disclosure does not fall within the exception created by the 1976 amendments 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 adopted prior to January 1, 1975 to verify the identity of an individual. Therefore, these provisions do not bring the disclosure within the section 7(a)(2)(B) exception.

Although the commission's stated justification does not satisfy the section 7(a)(2)(B) exception, we cannot rule out the possibility 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 licenses since that time. See Acts 1949, 51st Leg., ch. 149, § 1, at 304. If the 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 regulation, then the commission is not prohibited under section 7 of the Privacy Act of 1974 from refusing to renew a license on the basis of a licensee's refusal to disclose his or her SSN.[Footnote 3]

With respect to the second issue, you suggest that the commission and the licensee disagree 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 inapplicable 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 disclosure falls within one of the exceptions to the prohibition set forth in subsection (a). See, e.g., Greidinger v. Davis, 782 F. Supp. 1106 (E.D. Va. 1992), rev'd and remanded on other grounds, 988 F.2d 1344 (4th Cir. 1993); Yeager v. Hackensack Water Co., 615 F. Supp. 1087 (D.N.J. 1985); Doyle, 529 F. Supp. 1343, supra. In Greidinger, 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(b). The court in Yeager, 615 F. Supp. 1087, stated "the disclosure of social security numbers cannot be compelled without compliance with section 7(b) of the Privacy Act." 615 F. Supp. at 1091. Similarly, in Doyle, 529 F. Supp. 1343, the court noted that even if the Delaware Treasurer's practice of requiring the disclosure of SSNs was excepted by the 1976 amendments 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 requirements of section 7(b)." Doyle, 529 F. Supp. at 1350. The court further explained, "adequate explanation 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 circumstances." Id.

We do not decide here whether the letter provided to the licensee by the commission comports with the requirements of section 7(b). We do suggest, however, that the commission might want to review the information it provides to licensees regarding the disclosure of SSNs in light of the foregoing authorities. See authorities cited supra; see also Wolman, 501 F. Supp. at 312 (declaring form requiring the disclosure of an SSN invalid to the extent that it stated the disclosure was mandatory when no law provided for mandatory disclosure); Greater Cleveland Welfare Rights Org. v. Bauer, 462 F. Supp. 1313, 1321 (N.D. Ohio 1978) (concluding that section 7(b) requires meaningful disclosure). In informing licensees regarding the uses which will be made of their SSNs, the commission might also consider whether any such SSN will be subject to public disclosure under the Open Records Act, Government Code chapter 552. See Open Records Decision No. 622 (1994).

In sum, we conclude that if the commission required licensees to disclose SSNs as part of its system of records in existence and operating before January 1, 1975, under a statute or regulation adopted prior to that date to verify the identity of an individual, or if a federal statute requires disclosure of SSNs to the commission, the commission is not prohibited from refusing to renew a license on the basis of a licensee's refusal to disclose 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 be made of it." 5 U.S.C. § 552a note.

SUMMARY

Under the federal Privacy Act of 1974, 5 U.S.C. § 552a note (Act of Dec. 31, 1974, P.L. 93-579, § 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 information in a system of records in existence and operating before January 1, 1975, under a statute or regulation adopted prior to that date to verify the identity of an individual. 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 be made of it." 5 U.S.C. § 552a note.

DAN MORALES
Attorney General of Texas

JORGE VEGA
First Assistant Attorney General

WILL PRYOR
Special Counsel

RENEA HICKS
State Solicitor

MADELEINE B. JOHNSON
Chair, Opinion Committee

Prepared by Mary R. Crouter
Assistant Attorney General

Footnote 1: Section 408(a)(8) of title 42 of the United States Code makes it a felony to compel disclosure of an SSN in violation of federal law. 42 U.S.C. § 408(a)(8).

Footnote 2: As amended by Pub. L. 102-325, Title IV, §§ 486(b), 498(s) (effective with respect to periods of enrollment beginning on or after July 1, 1993).

Footnote 3: For example, the commission contends in a letter recently submitted to this office that it requires disclosure of SSNs "to assist in the determination whether applicants or licensees have been convicted of criminal offenses" from a criminal history record supplied by the Department of Public Safety, and that its application form required the disclosure of SSNs for this purpose prior to 1975. It also contends that the commission's use of SSNs for this purpose "constitutes a 'use' . . . excepted . . . from the federal Privacy Act of 1974. Given the state of the law with regard to rulemaking at the time, the Commission's requirements were as binding then as formally adopted requirements are today under present law." The determination whether the commission had a regulation requiring the disclosure of SSNs to verify the identification of individuals prior to January 1, 1975, would involve the resolution of factual matters and is therefore not amenable to the opinion process.