December 19, 1989

Jeff Stingley, Secretary
Department of Commerce & Regulation
500 E. Capitol
Pierre, SD 57501

OFFICIAL OPINION NO. 89-35

Use of social security numbers to identify licensed operators of motor vehicles in South Dakota

Dear Mr. Stingley:

You have requested an official opinion from this Office concerning the following factual situation:

FACTS:

The Department of Commerce and Regulation requires the disclosure of an applicant's social security number as identification before it will issue a driver's license pursuant to SDCL 32-12-3. This disclosure requirement is a mandatory part of the application information which must be provided by first-time applicants and by applicants seeking renewal of their driving privileges. The Department also prints the social security number on the applicant's driver's license. The applicant may object to the Department's practice of printing the social security number on the driver's license but not to the disclosure of this number in the application form for the license. If an applicant objects to his social security number appearing on his driver's license, he may indicate his opposition on a separate form, with or without explanation; Department will then assign an alternative code number to appear on the driver's license. In the event that an applicant, such as a foreign student, has not been assigned a social security number by the federal government, the Department will assign an identification code number; and that number shall appear on both the application and the driver's license.

Based upon the above facts, you have asked the following question:

QUESTION:

Whether the Department of Commerce and Regulation can require the disclosure of an applicant's social security number for identification before it issues a motor vehicle operator's license?

IN RE QUESTION:

Your question requires consideration of Section 7 of the Privacy Act of 1974, (5 U.S.C. 552(a) note), the 1976 Amendment to the Social Security Act, (42 U.S.C. 405(c)(2)(C)(i, ii, iii)) and SDCL 32-12-3.

Federal law provides that the states may require that a driver's license applicant furnish a social security number for the purposes of identification under certain circumstances. See Doyle, 529 F.Supp. 1343, 1348-1349 (D.C. Del. 1982); Perky v. California Department of Motor Vehicles, 197 Cal.Rptr. 516, 520 n.3 (Cal.App.3 Dist. 1983). The Privacy Act originally provided in Section 7 in part:

(1) It shall be unlawful for any Federal, State or local government agency to deny 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 section 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.

The 1976 Congressional Amendment to the Social Security Act, adopted after the effective date of Section 7 of the Privacy Act, provides an additional exception to the statutory exemption afforded those individuals who refuse to disclose their social security numbers in applying for state privileges. 42 U.S.C. 405(c)(2)(C)(i, ii, iii). See Doyle, supra; Perky, supra. This exception enlarges the circumstances in which state and local governments may require the disclosure of social security numbers. See FSCME v. City of Albany, 725 P.2d 381, 383 (Or.App. 1986); Doyle, supra; Perky, supra. That section 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 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 provision shall, on and after October 4, 1976, 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 or D of subchapter IV of this chapter. (Emphasis added.)

Based upon my analysis of this language, it is my opinion that the Department's practice of requiring disclosure of social security numbers for identification as a condition of licensure must meet the following criteria to be permissible:

(1) The required disclosure of the social security number must be incident to the administration of a state driver's license law; and

(2) The disclosure must be mandated by a state agency charged with the administration of the driver's license law; and

(3) The disclosure may be required only for the applicant's identification.

Unlike Section 7(a)(2)(B) of the Privacy Act, these criteria under the Social Security Act of 1976 are not qualified by any federal requirement that the state statute or regulation mandating an applicant's disclosure of a social security number must have been promulgated before January 1, 1975. 42 U.S.C. 405(c)(2)(C)(i, ii, iii).

In addition to these criteria, the Department must demonstrate compliance with Section 7(b) of the Privacy Act which requires that applicants disclosing their social security numbers pursuant to the administration of a state's driver's license law are afforded adequate notice of the Department's policy. This notice must include the following information: (1) whether disclosure of the social security number is mandatory or voluntary; (2) a citation for the statute or regulation permitting the disclosure of the number; and (3) the use for which the Department has requested this information. Doyle, supra, at 1350.

The Department's procedure in this instance is specifically authorized by SDCL 32-12-3. This statute as amended by the 1989 Legislature, provides in pertinent part:

Every application under this chapter shall state the full legal name or any other name taken for lawful purposes, date of birth, social security number, sex and mailing address of the applicant, and briefly describe the applicant. . . . All applicants shall certify the information provided as true and correct.

This statute thus requires the disclosure of social security numbers by a driver's license applicant without exemption, and in my view complies with the 1976 Amendment to the Social Security Act. 42 U.S.C. 405(c)(2)(C)(i, ii, iii).

The disclosure of social security numbers may, however, implicate the Free Exercise of Religion Clause of the First Amendment and its South Dakota counterpart. See S.D. Const. art. VI, 3; see also Thomas v. Review Board, 450 U.S. 707 (1981); Sherbert v. Verner, 374 U.S. 398 (1963); Braunfeld v. Brown, 366 U.S. 599 (1961), reh'g denied, 368 U.S. 869 (1961); Quaring v. Peterson, 728 F.2d 1121 (8th Cir. 1984); State v. Cosgrove, 439 N.W.2d 119 (S.D. 1989), cert. denied___ S.Ct. ____ (1989).

The most analogous case discovered is Leahy v. District of Columbia, 833 F.2d 1046 (D.C.App. 1987). The Court of Appeals there held that the District of Columbia failed to show that requiring a religious objector to provide a social security number in order to obtain a driver's license was the least restrictive means of fulfilling an assumed compelling state interest. Id. at 1049. The Court observed that the District already had in place an alternative system of numerical identification for issuing diplomatic driver's licenses. Id. at 1049 n.6. It concluded that the District could easily accommodate its need to identify the applicant and the applicant's sincere religious objection to disclosure of his social security number under the First Amendment. Id. at 1049. The Court remanded, however, for a determination of whether the applicant's religious based objection to disclosure was sincere. Id.

The State need not contest religiously based objections before granting exceptions to disclosure. Few religiously motivated requests for exemptions to the disclosure of social security numbers seem likely. Consequently, the administrative and fiscal burden of insisting that the applicant prove the sincerity of a religious refusal outweighs the benefit of accommodating only sincere objectors. Thus, the Department should allow alternative means of identification, on the application form, such as submission of passports or birth certificates when a driver's license applicant objects to disclosure on religious grounds. Leahy, supra, at 1047. Of course, this weighing is a policy decision committed to administrative discretion.

In the absence of binding judicial precedence on this question, I am of the opinion that the Department can ordinarily require a motor vehicle operator to disclose his social security number for identification as a condition of licensure. I stress that the Department must provide applicants with notice of the following information: (1) that disclosure of the social security number is mandatory; (2) that SDCL 32-23-3 requires disclosure of this number; and (3) that the Department requires disclosure of the social security number only for identification purposes. If an applicant objects to disclosure of his social security number on religious grounds, the Department may assign an alternative identification number to that applicant. Should you decide to not allow a less restrictive alternative means of identification in the face of sincere religious belief, my best legal judgment of the outcome is that a Court would order you to do so and to pay all attorney's fees for the applicant.

Respectfully submitted,

ROGER A. TELLINGHUISEN
ATTORNEY GENERAL

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