Untitled California Attorney General Opinion

OFFICE OF THE ATTORNEY GENERAL

State of California

JOHN K. VAN DE KAMP

Attorney General

______________________________________

OPINION :

: No. 90-202

of :

: OCTOBER 31, 1990

JOHN K. VAN DE KAMP :

Attorney General :

:

RONALD M. WEISKOPF :

Deputy Attorney General :

:

_________________________________________________________________
_______________

THE HONORABLE WILLIAM E. DAVIS, DIRECTOR, ADMINISTRATIVE

OFFICE OF THE COURTS, has requested an opinion on the following

question:

May a person who has been arrested for a traffic offense

be required to furnish his or her social security number to the

arresting officer or to the court when the person is admitted to

bail or fined, so that it would be available to a county department

of collections for collection purposes in the event the person does

not pay a fine?

CONCLUSION

A person who has been arrested for a traffic offense may

be required to furnish his or her social security number to the

arresting officer or to the court when the person is admitted to

bail or is fined, so that it would be available to a county

department of collections for collection purposes in the event the

person does not pay a fine, if (1) such mandatory disclosure is

authorized by state statute, Judicial Council rule, or other

administrative regulation, (2) the person is first informed that

furnishing the number is mandatory by virtue of such authority, and

(3) he or she is told the uses that will be made of it.

ANALYSIS

This opinion deals with whether a person who has violated

a traffic law may be required to disclose his or her social

security number at two particular stages encountered in the

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administration of California's traffic laws: when he or she is

arrested for the violation, and when he or she is admitted to bail

or is fined in court. The arresting officer would write the social

security number on the Notice To Appear; the court would enter it

in the court records. The purpose for securing the number in

either situation would be to have it available so that it could

ultimately be used by a county department of collections in order

to pursue collection of a delinquent fine.1

At present no state statute, state or local

administrative regulation, or court rule approved by the Judicial

Council, sanctions such requests for traffic violators' social

security numbers. We conclude that until such time as that type of

authority exists, a person who has violated a traffic law may not

be required to furnish his or her social security number to an

arresting officer or to a court. Moreover, before a traffic

violator may be required to provide the number, he or she must be

informed of certain information required by section 7(b) of the

federal Privacy Act.

The use of the social security number as a personal

identifier, "both in private commercial transactions and in citizen

communications with government, [has become] commonplace, despite

Congressional efforts to curb expanding compulsory disclosure of

[it]." ( Doyle v. Wilson (D.Del. 1982) 529 F.Supp. 1343, 1351.)

The basic Congressional effort is contained in section 7 of the

Privacy Act of 1974 (Pub.L. 93-579 [5 U.S.C. § 552a & hist. note])

which provides as follows:

"(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.

1
Several counties have established a special department or

office to collect unpaid fines, court ordered assessments, and

other monies owing the county. In other counties that function is

carried out by an existing county office, such as the county

counsel, the county treasurer, or the county auditor/controller.

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 "(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."

Section 7 thus contemplates that government agencies may

request, or even require, individuals to disclose their social

security numbers, but it contains two separate and distinct

conditions which affect their doing so: subsection (a) sets an

absolute prohibition against a government agency's attaching

certain consequences to a refusal to provide a social security

number (except in certain situations); and subsection (b) requires

that before a person can even be asked for his or her social

security number by a government agency, he or she must be informed

of three things: (i) whether the disclosure is mandatory or

voluntary, (ii) the statute or other authority under which the

request is made, and (iii) how the number will be used. (See e.g,

Yeager v. Hackensack Water Co. (D.N.J. 1985) 615 F.Supp. 1087,

1091; Doyle v. Wilson, supra, 529 F.Supp. 1343, 1349-1350; Doe v.

Sharp (D.Mass. 1980) 491 F.Supp. 346, 349-350; Greater Cleveland

Wel. Rights Org. v. Bauer (N.D.Ohio 1978) 462 F.Supp. 1313, 1319,

1320.)

We construe the reference to "right, benefit, or

privilege" in subsection (a) to mean not only those things to which

a person might be entitled to by law as of right, but also those

things to which he or she may be entitled in the discretion of

another if the exercise of that discretion is conditioned upon

providing the social security number. Subsection (a) forbids the

denial of either for failing to provide a social security number

unless provision of the number is required by federal statute or by

a statute or regulation antedating 1975 that was adopted to

identify individuals in connection with a then-existing system of

records.

A person apprehended for a traffic offense is accorded

various rights, benefits, and privileges by California's Vehicle

Code at different stages in the law's enforcement. (See generally,

Comment, California Traffic Law Administration (1960) 12

Stan.L.Rev. 388.) For example, in the vast majority of traffic

cases, a person arrested for a traffic offense has an absolute

right to be released from custody on the basis of signing a Notice

To Appear, i.e., a promise to appear in court or before a person

authorized to receive a deposit of bail. (Veh. Code, §§ 40500,

40504; see People v. Superior Court (Simon) 7 Cal.3d 186, 199;

People v. Superior Court (Fuller) (1971) 14 Cal.App.3d 935, 942.)

And even where more serious traffic offenses are involved, the

person may be eligible to receive the "benefit" of being released

from custody on signing the Notice and promising to appear, if that

seems proper "in the judgment of the arresting officer." (Veh.

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Code, §§ 40303, 40404; see People v. Superior Court (Simon), supra

at 199-200; People v. Superior Court (Fuller), supra; California

Traffic Law Administration, supra, 12 Stan.L.Rev. at pp. 396-397.)

Then, a person who is taken into custody to appear before a

magistrate may have an absolute right to be admitted to bail and

released from custody either by the magistrate before whom he or

she is taken, or, if the magistrate is unavailable, by the clerk of

the magistrate or the officer in charge of the jail. (Veh. Code,

§§ 40302, 40303, 40306, 40307; cf., Cal. Const., art. I, § 12; Pen.

Code, §§ 1271, 1281; see People v. Superior Court (Simon), supra,

7 Cal.3d at 209; People v. Collin (1973) 35 Cal.App.3d 416, 421;

People v. Rhodes (1972) 23 Cal.App.3d 257, 259; Gustafson, Bail In

California (1956) 44 Cal.L.Rev. 815, 816-818, 822.)

In these, or any other situation where a right, benefit

or privilege accorded a traffic violator would be held hostage to

a demand to furnish a social security number, section 7(a) of the

Privacy Act would be violated unless the furnishing of the number

was required by federal statute or by a statute or regulation

adopted prior to January 1, 1975 designed to verify the identity of

individuals in connection with a then existing system of records.

We are unaware of any federal or pre-1975 state authority that

requires the furnishing of social security numbers in the

circumstances under consideration, and none has been suggested.

However, there is a federal statute, which was enacted

after the Privacy Act, that permits states and local agencies to

require persons to disclose their social security numbers if that

is found necessary for identification purposes in the

administration of certain state laws. Specifically, subparagraph

(C) was added to section 205(c)(2) of the Social Security Act [42

U.S.C.A. § 405(c)(2)(C)] in 1976 to provide in part:

"(C)(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 who

is or appears to be so affected to furnish to such State

(or political subdivision thereof) or any agency thereof

having administrative responsibility for the law

involved, the social security account number (or numbers,

if he has more than one such number) issued to him by the

Secretary.

"(ii) If and to the extent that any provision of

Federal law heretofore enacted is inconsistent with the

policy set forth in clause (i) of this subparagraph, such

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 provision shall, on and after the date of the enactment

of this subparagraph, be null, void, and of no effect.

"(iii) 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) above and for the

purpose of responding to requests for information from an

agency operating pursuant to the provisions of part A

[Aid To Families With Dependent Children or D [Child

Support and Establishment of Paternity] of title IV of

the Social Security Act [42 U.S.C.A. § 601 et seq.]."

Subparagraph (C) provides a separate basis upon which

states and local agencies can require persons to furnish their

social security account numbers. ( Doyle v. Wilson, supra, 529

F.Supp. at 1349; Doe v. Sharp, supra, 491 F.Supp. at 349). Thus,

even where a required disclosure of a social security number is

involved and a traffic violator might be denied a right, benefit,

or privilege provided by law because of a refusal to disclose,

under subparagraph (C) of section 205(c)(2) of the Social Security

Act the officer or the court may still require the individual to

furnish the number, if that would be "incident to [aiding

identification of the person in] the administration of

[California's] driver's license ... law...." ( Doyle v. Wilson,

supra; see also, Doe v. Sharp, supra; H.R.Conf.Rept. No. 94-1515 to

Pub.L. No. 94-455, reprinted in 1976 U.S. Code Cong. & Admin. News

2897, 4118, 4194-4195.) We believe that securing and using traffic

offenders' social security numbers in the situations presented come

within the ambit of the permission granted by subparagraph (C).

With the 1976 enactment of subparagraph (C), "States are

permitted to use social security numbers on driver's licenses...."

(U.S. v. Silva-Chavez (5th Cir. 1989) 888 F.2d 1481, 1483.)

Moreover, the statute speaks in terms of states and local agencies

being able to require individuals to disclose their social security

numbers "for the purpose of administering [a driver's license law]"

(§ 205(c)(2)(C)(iii)), and utilizing the social security number for

the purpose of establishing the identification of individuals "in

the administration" of such a law (id., sub¶ (C)(i).) That

permission implies a continuing ability to require and to use the

numbers as the law is being administered. (Cf. Doyle v. Wilson,

supra, 529 F.Supp. at 1343.)

The Vehicle Code does not stop its oversight of

California drivers with the issuance of licenses, and its

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administration involves the post-licensing control of errant

drivers. (Cf. Veh. Code, §§ 1803, 1806, 12807, 12808, 12810,

12810.5, 12812, 13330 et seq.) The imposition of fines and

"traffic bail" is part of that post-licensing administration of the

law where both are employed to punish the traffic offender. (Veh.

Code, § 42001.5 et seq.; 40512, 40512.5; McDermott v. Superior

Court (1972) 6 Cal.3d 693, 695-696; Comment, California Traffic Law

Administration, supra, 12 Stan.L.Rev. at p. 400.) In fact, most

traffic cases in the state are disposed of by what is known as

"[traffic] bail forfeiture." (See, Comment,California Traffic Law

Administration, supra, 12 Stan.L.Rev. at p. 400; see also, People

v. Superior Court (Simon), supra, 7 Cal.3d at 199; McDermott v.

Superior Court, supra, 6 Cal.3d at 697 fn. 2.) Both the offender

who has actually been taken before a magistrate and has posted bail

so as to be released from custody, and the offender who has

remained at liberty on a written promise to appear, may avoid a

court appearance by failing to appear and forfeiting his or her

bail in lieu of fine. (§§ 40512, 40512.5; see also, People v.

Superior Court (Simon), supra.) Thus, "[b]ail for traffic law

offenses is, generally, in effect a fine and is employed more for

the purpose of punishment and judicial convenience than insuring

that the trial process will take place." ( McDermott v. Superior

Court, supra, 6 Cal.3d at 696.)

In order for this system to work and for the traffic

offender to be punished for violating the law, the fine that is

imposed or the bail that is forfeited must actually be paid.

Should collection of it become necessary, the identity of a driver

must be known with some degree of accuracy. However, given the

number of identical and similar names and the mobility of the

population, achieving that identification is particularly difficult

without a specific identifier to pinpoint individuals wherever they

are. Since the usual traffic case involves only minimal contact

with the offender, with that occurring either in the field or in a

brief court appearance, the difficulty of being able to

specifically identify a person who has violated a traffic law at a

later time when a fine is not paid, is particularly pronounced.

With the social security number, a county department of

collections could more easily identify a debtor-defendant,

especially where a common name is involved. (Cf. McElrath v.

Califano (7th Cir. 1980) 615 F.2d 434, 440; Cantor v. Supreme Court

of Pennsylvania (E.D. Pa. 1973) 353 F.Supp. 1307, 1321.) This

would enable it to pursue collection of an unpaid fine through the

courts (cf. Pen. Code, §§ 1214(a), 1214.1; 63 Ops.Cal.Atty.Gen.

418, 424 (1980)), and through the state's tax intercept program

(cf. Gov. Code, §§ 12419.3, 12419.8). We believe that obtaining

the number for the purposes described is a necessary incident to

the effective administration of California's driver's license law.

Accordingly we conclude that under subparagraph (C) to section

205(c)(2) of the Social Security Act, persons who violate a traffic

6. 90-202

law may be required to provide their social security numbers to an

arresting officer or to a court.

However, subparagraph (C) speaks of permitting "[a] State

(or political subdivision thereof)" or "an agency of a State (or

political subdivision thereof) charged with the administration of

[a] ... driver's license ... law," to require individuals to

disclose their social security number. We believe that before an

individual may be compelled to furnish his or her number in a

particular situation, a governmental agency must take formal

legislative action to require that disclosure. (See Alcaraz v.

Block (9th Cir. 1984) 746 F.2d 593, 600-602 [formal rules adopted

by U.S. Secretary of Agriculture]; United States v. $200,000 In

United States Currency (S.D. Fla. 1984) 590 F.Supp. 866, 869 [form

insufficient without regulation or other administrative legislation

to effect it]; cf. Wolman v. United States of Am., Selective

Service Sys., supra, 501 F.Supp. at 313; Doyle v. Wilson, supra,

529 F.Supp. at 1349.) Here that would mean that the state itself,

or an administrative agency of the state charged with the

administration of the Vehicle Code, would first have to take

appropriate formal action adopting a requirement that drivers

furnish their social security numbers to arresting officers and

courts, before the officers and the courts could demand them.2

With such formal authority, we conclude that a person who

violates a traffic law may be required to furnish his or her social

security number to an arresting officer when he or she is arrested,

or to a court when he or she is admitted to bail or is fined. Even

then, however, one other consideration impacts the request for the

number. Subparagraph (C) of section 205(c)(2) of the Social

Security Act provides an exception only to the strictures of

subsection (a) of section 7 of the Privacy Act (see Doyle v.

Wilson, supra, 529 F.Supp. at 1349; Doe v. Sharp, supra, 491

F.Supp. at 349) and those of subsection (b) would still govern any

request that is made for them. Under subsection (b), before a

state or local agency may request an individual to provide his or

her social security number, the individual from whom disclosure is

sought must be informed "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." Compliance with the

2
For example, section 40500, subdivision (b) of the Vehicle

Code authorizes the Judicial Council to devise the form for the

Notice to Appear. We believe that invites the Council to take rule

making action to have the social security number of traffic

offenders appear on the Notice. Similarly, the Judicial Council

could draft a rule for courts hearing traffic cases to regularly

ask for the social security number of a defendant before admitting

the person to bail or fining him or her. (Cf. Cal. Const., art. I,

§ 6; Gov. Code, § 68070.)

7. 90-202

subsection is the key to achieving the overall congressional

objective for enacting section 7 of the Privacy Act and "adequate

explanations of the information required by [it] is critical to the

right afforded by [subsection (a)] to withhold disclosure of the

social security number, except in limited circumstances." (Doyle

v. Wilson, supra, 529 F.Supp at 1349, 1350; see also, Doe v. Sharp,

supra, 491 F.Supp at 349.) Accordingly, courts which have reviewed

the matter have carefully examined the timing, content and

presentation of the section 7(b) information to see if it

constitutes a meaningful offering of the required information. In

order for the section to operate in an effective manner, the person

must be given the information at or before the time the request for

the social security number is made. (See Doyle v. Wilson, supra at

1350; Greater Cleveland Wel. Rights Org. v. Bauer, supra, 462

F.Supp. at 1319, 1320; Doe v. Sharp, supra at 349-350.) For a

notification to be "meaningful," it must inform the individual of

the three items of information required by subsection (b) with some

degree of specificity, especially as regards the uses that will be

made of the number. (See e.g., Alcaraz v. Block, supra, 746 F.2d

at 608-609; McElrath v. Califano, supra, 615 F.2d at 438 & 438 fn.

3; Greater Cleveland Wel. Rights Org. v. Bauer, supra, at 1318­
1321.)

For example, in the situation presented, a notification

should inform the person that the number will be used as an aid in

identifying him or her should it be necessary to pursue collection

of any unpaid fine (or bail forfeiture), including using it if

necessary to identify him or her in the tax intercept program by

which the amount owing would be offset against any tax refund due.

A timely and sufficient notification may be given by having

adequate information on the Notice To Appear, or on another written

notice given the traffic offender.

We therefore conclude that if authorized by state

statute, Judicial Council rule, or other administrative regulation,

an arresting officer or a court may require a traffic offender to

disclose his or her social security number, provided that the

individual is first given the information specified in section 7(b)

of the Privacy Act.

* * * * *

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