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State ex rel. Beacon Journal Publishing Co. v. City of Akron

Court: Ohio Supreme Court
Date filed: 1994-10-26
Citations: 70 Ohio St. 3d 605
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Pfeifer, J.

We are asked to determine whether the city is obligated to provide the ABJ with the SSNs of approximately two thousand five hundred city employees pursuant to Ohio’s public records statute. For the following reasons, we find that disclosure of this information is not required.

I

The city and Sowa contend that they are not obligated to provide the SSNs because they are not “records” for purposes of the Public Records Act. We disagree.

When “information in question is not a record, it is not a public record subject to disclosure under R.C. 149.43.” State ex rel. Fant v. Mengel (1992), 62 Ohio St.3d 455, 584 N.E.2d 664, 665. R.C. 149.011 broadly defines “records.” This definition is to be given an expansive rather than a restrictive construction. State ex rel. Cincinnati Post v. Schweikert (1988), 38 Ohio St.3d 170, 527 N.E.2d 1230. R.C. 149.011 provides the following:

“As used in this chapter:

a * * *

“(G) ‘Records’ includes any document, device, or item, regardless of physical form or characteristic, created or received by or coming under the jurisdiction of any public office of the state or its political subdivisions, which serves to document the organization, functions, policies, decisions, procedures, operations, or other activities of the office.”

The city has stipulated that its computerized year-end employee master payroll files contain the SSNs of all of its employees. The city uses the SSNs as taxpayer identification numbers in' these files. This use of the SSN by the city leads us to conclude that it is a “device * * * received by * * * political subdivisions, which serves to document organization, functions, [and] operations * * * of the office.” Thus, the Social Security numbers of the city’s employees are “records” for the purposes of the Public Records Act.

*607II

We must next determine whether SSNs, while being “records,” are also “public records” for purposes of the Public Records Act. For the following reasons, we conclude that they are not public records.

To compel the city to disclose the SSNs of its employees, the ABJ must prove that they are public records. R.C. 149.43(A) defines “public records,” as follows:

“As used in this section:

“(1) ‘Public record’ means any record that is kept by any public office, including, but not limited to, state, county, city, village, township, and school district units, except medical records, records pertaining to adoption, probation, and parole proceedings, records pertaining to actions under section 2151.85 of the Revised Code and to appeals of actions arising under that section, records listed in division (A) of section 3107.42 of the Revised Code, trial preparation records, confidential law enforcement investigatory records, and records the release of which is prohibited by state or federal law. * * * ”

Records that are “public records” as defined in R.C. 149.43(A) must be disclosed pursuant to R.C. 149.43(B).1

The city and amici contend that disclosure of the SSNs would violate the right to privacy of city employees and, thus, is not permissible. R.C. 149.43(A) expressly excludes the release of records which would violate state or federal law. Because we find that the disclosure of the SSNs would violate the federal constitutional right to privacy, we find them to be excluded from mandatory disclosure.2

“The cases sometimes characterized as protecting ‘privacy1 have in fact involved at least two different kinds of interests. One is the individual interest in avoiding disclosure of personal matters, and another is the interest in independence in making certain kinds of important decisions.” (Footnotes omitted.) Whalen v. Roe (1977), 429 U.S. 589, 598-600, 97 S.Ct. 869, 876, 51 L.Ed.2d 64, 73. The first interest is relevant to the matter before us.

The right to avoid disclosure of personal matters is so broad in scope that it applies to the most public of our public figures. Even the President of the *608United States possesses this right. Nixon v. Admr. of Gen. Serv. (1977), 433 U.S. 425, 457, 97 S.Ct. 2777, 2797, 53 L.Ed.2d 867, 900.

In Nixon, the United States Supreme Court discussed the right to have personal matters free from disclosure to the public. President Nixon sought to prevent the Administrator of the General Services Administration from taking custody of an estimated forty-two million pages of documents and eight hundred eighty tape recordings from the Nixon presidency, and promulgating rules for eventual public access. Nixon argued, among other things, that the Presidential Recordings and Materials Preservation Act (“PRMPA”), which prescribes the process by which these documents were to be disclosed, violated Nixon’s right to privacy. Pursuant to the PRMPA, government archivists were entrusted with responsibility of preventing confidential and personal matters from being disclosed.

The Nixon court found that “appellant [Nixon] has a legitimate expectation of privacy in his personal communications.” Id., 433 U.S. at 465, 97 S.Ct. at 2801, 53 L.Ed.2d at 905. The court concluded, however, that this right to privacy was not absolute. Instead, the court found that when an individual has an interest in avoiding disclosure, that interest must be weighed with the government’s interest in disclosing the information. “[T]he constitutionality of the Act must be viewed in the context of the limited intrusion of the screening process, of appellant’s status as a public figure, of his lack of any expectation of privacy in the overwhelming majority of the materials, of the important public interest in preservation of the materials, and of the virtual impossibility of segregating the small quantity of private materials without comprehensive screening. When this is combined with the Act’s sensitivity to appellant’s legitimate privacy interests * * *, the unblemished record of the archivists for discretion, and the likelihood that the regulations to be promulgated by the Administrator will further moot appellant’s fears that his materials will be reviewed by ‘a host of persons,’ * * * we are compelled to agree with the District Court that appellant’s privacy claim is without merit.” Id.

Thus, according to the Nixon case, there is a federal right to privacy which protects against governmental disclosure of the private details of one’s life. Nixon, although not dispositive of the case before us, sets forth the parameters of the right to privacy that we apply to the present case. We must use an analysis similar to that used in Nixon to determine whether the right to privacy of city employees is invaded when the city reveals their SSNs to all inquirers. We must determine whether the city employees have a legitimate expectation of privacy in their SSNs and then whether their privacy interests outweigh those interests benefited by disclosure of the numbers. Slayton v. Willingham (C.A.10, 1984), 726 F.2d 631, 635.

*609A

Expectation of Privacy

Due to the federal legislative scheme involving the use of SSNs, city employees have a legitimate expectation of privacy in their SSNs. Uncodified Section 7 of the Privacy Act of 1974 provides the following:

“(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.

U * * *

“(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 552a note (Disclosure of Social Security Number), Title 5, U.S.Code, Pub.L. No. 93-579, Section 7, 88 Stat. 1896, 1909.

The purpose of the Privacy Act of 1974 was “to curtail the expanding use of social security numbers by federal and local agencies and, by so doing, to eliminate the threat to individual privacy and confidentiality of information posed by common numerical identifiers.” Doyle v. Wilson (D.Del.1982), 529 F.Supp. 1343, 1348.

Congress when enacting the Privacy Act of 1974 was codifying the societal perception that SSNs should not to be available to all. This legislative scheme is sufficient to create an expectation of privacy in the minds of city employees concerning the use and disclosure of their SSNs.

B

Weighing Interests Benefited by Disclosure Against Privacy Interests

Having held that employees of the city have a reasonable expectation of privacy regarding the disclosure of their Social Security numbers, we must weigh these privacy interests against those favoring disclosure.

The United States Court of Appeals for the Fourth Circuit reviewed a case similar to this one in Greidinger v. Davis (C.A.4, 1993), 988 F.2d 1344. In Greidinger, the plaintiff challenged Virginia voting laws that required citizens to provide their SSNs when registering to vote. These SSNs were available to anyone who purchased voter registration lists. The state of Virginia claimed that the SSNs were necessary to avoid voter fraud. The court of appeals held that Virginia’s interest in internal use of SSNs did not justify disclosure and that *610other data such as voter registration numbers or addresses would provide the state with enough information to distinguish voters with the same name.

The appellate court held that the disclosure of this other information was less intrusive than the disclosure of SSNs. The Greidinger court listed the potential jeopardy that voters would be placed in if their Social Security numbers were recorded and then unconditionally released:

“[A]rmed with one’s SSN, an unscrupulous individual could obtain a person’s welfare benefits or Social Security benefits, order new checks at a new address on that person’s checking account, obtain credit cards, or even obtain the person’s paycheck. * * * Succinctly stated, the harm that can be inflicted from the disclosure of an SSN to an unscrupulous individual is alarming and potentially financially ruinous.” Id. at 1353-1354.

After discussing the potential evils created by the release of voters’ SSNs, the Greidinger court stated:

“Virginia’s voter registration form requires a registrant to supply, among other things, his name, address, SSN, age, place of birth, and county of previous registration. Virginia’s interest in preventing voter fraud and voter participation could easily be met without the disclosure of the SSN and the attendant possibility of a serious invasion of privacy that would result from that disclosure. * * * Most assuredly, an address or date of birth would sufficiently distinguish among voters that shared a common name.” Id. at 1354-1355.

The case before this court requires analysis similar to that used by the Greidinger court. The public’s interest in obtaining city employees’ SSNs must be weighed against the harm caused by the invasion of employees’ privacy resulting from the release of the SSNs.

It is fundamental tenet of democracy that the people, the press, and the media be fully informed about the processes of their government. As John Adams noted, “[liberty cannot be preserved without a general knowledge among the people, who have a right * * * and a desire to know; but besides this, they have a right, an indisputable, unalienable, indefeasible, divine right to that most dreaded and envied kind of knowledge, I mean of the characters and conduct of their rulers.” John Adams, A Dissertation on the Canon and Feudal Law (1765). However, this right is by no means boundless or unconditional. See Nixon.

The city’s refusal to release its employees’ SSNs does not significantly interfere with the public’s right to monitor governmental conduct. The numbers by themselves reveal little information about the city’s employees. The city provided appellees with enormous amounts of other information about each city employee; only the SSNs numbers were deleted. Employees’ addresses, telephone numbers, salaries, level of education, and birth dates, among other things, *611were all provided. The data supplied by the city provides far more enlightening information about the composition of the city’s workforce than would SSNs.

While the release of all city employees’ SSNs would provide inquirers with little useful information about the organization of their government, the release of the numbers could allow an inquirer to discover the intimate, personal details of each city employee’s life, which are completely irrelevant to the operations of government. As the Greidinger court warned, a person’s SSN is a device which can quickly be used by the unscrupulous to acquire a tremendous amount of information about a person.

In this case, James E. Young, an employee of the city, testified that he objected to the city’s release of his SSN because of the harm previously caused by the unwarranted release of his SSN. Young testified that, in 1989, he and a friend were attempting to purchase a rental property. Young was informed that he would be denied credit partly because of delinquent accounts with retail credit institutions.

Young was notified by the ex-wife of another James E. Young (“Young 2”), that Young 2 had obtained Young’s SSN when Young 2 requested his own transcript from the University of Akron. The university erroneously sent Young 2 the transcript of Young, complete with Young’s SSN. Young 2, using the improper SSN, opened accounts with Firestone, Texaco, Associate Finance and a department store in Richmond, Virginia. Apparently, Young 2 had used these accounts and was delinquent in paying them. In order to rectify his credit record, Young had to pay nearly $800 in attorney fees. The plight of Young illustrates the ability of a pretender using an SSN to assume another’s identity. This is perhaps the ultimate invasion of one’s privacy.

During recent Congressional hearings, journalist Jeffrey Rothfeder testified before the House Subcommittee on Social Security that, during a journalistic investigation, he was able to obtain highly confidential information about then-Vice President Dan Quayle with the use of Quayle’s SSN. Rothfeder obtained Quayle’s private Virginia address and the Vice President’s unlisted phone number. Through this exercise, Rothfeder “wanted to show that with privacy at a premium and data banks proliferating even the Vice President of the United States is easy pickings for somebody with prying eyes.” Use of Social Security Number as a National Identifier, Hearing Before the Subcommittee on Social Security of the Committee on Ways and Means, 102d Congress, 1st Session, Serial 102-11 (1991) 75.

Thanks to the abundance of data bases in the private sector that include the SSNs of persons listed in their files, an intruder using an SSN can quietly discover the intimate details of a victim’s personal life without the victim ever knowing of the intrusion.

*612We find today that the high potential for fraud and victimization caused by the unchecked release of city employee SSNs outweighs the minimal information about governmental processes gained through the release of the SSNs. Our holding is not intended to interfere with meritorious investigations conducted by the press, but instead is intended to preserve one of the fundamental principles of American constitutional law — ours is a government of limited power. We conclude that the United States Constitution forbids disclosure under the circumstances of this case. Therefore, reconciling federal constitutional law with Ohio’s Public Records Act, we conclude that R.C. 149.43 does not mandate that the city of Akron disclose the SSNs of all of its employees upon demand.

The judgment of the court of appeals is reversed.

Judgment reversed.

Moyer, C.J., A.W. Sweeney and Shaw, JJ., concur. Douglas, Resnick and F.E. Sweeney, JJ., dissent. Stephen R. Shaw, J., of the Third Appellate District, sitting for Wright, J.

. R.C. 149.43(B) provides:

“All public records shall be promptly prepared and made available for inspection to any person at all reasonable times during regular business hours. Upon request, a person responsible for public records shall make copies available at cost, within a reasonable period of time. In order to facilitate broader access to public records, governmental units shall maintain public records in a manner that they can be made available for inspection in accordance with this division.”

. Appellants and amici do not contend that disclosure of the city employees’ SSNs would violate a separate state constitutional right to privacy. Thus, that issue is not discussed.