April 15, 1983
Mr. Gary E. Davis
State's Attorney
Gregory County Courthouse
Burke, South Dakota 57523
Opinion No. 83-16
Publication of Names of Recipients of Public Assistance
Dear Mr. Davis:
You have requested an official opinion from this office concerning the following factual situation:
FACTS:
A member of the Gregory County Commission has asked whether it would be permissible pursuant to South Dakota law, and under applicable federal law and regulation to publish the names of persons who receive benefits or payments from the food stamp program, ADC and similar programs in the official minutes of the county commission proceedings and therefore in the legal newspapers of Gregory County.
As an alternative request from the County Commissioner is whether it was permissible under either state law, or federal law or regulation to make a list of the recipients available for public inspection either on the bulletin board of the courthouse or by inquiring with the appropriate court official as to who had received benefits or payments in the past.
The resolution of your requests involves an examination of the interrelation of various state and federal statutes and regulations. Before doing that, however, it is necessary to consider the South Dakota statutes governing confidentiality for recipients of county poor relief.
SDCL 7-18-3.1 provides that:
The name of any person receiving or who is entitled to poor relief as provided in Chapter 28-13 shall not be published as a part of the minutes of county commissioners meetings as provided in § 7-18-3.
In addition, the language of SDCL 28-13-42 is clear that:
The county auditor or any other county official shall not release the name of any poor relief recipient for official publication.
The above statutes leave no doubt that the names of recipients of county poor relief cannot be published in the official minutes of the county commission proceedings or the legal newspapers of Gregory County. It is also my opinion that a list of said names may not be posted on the bulletin board of the courthouse for public inspection, however, receipt of poor relief is a matter of public record to which the public has access. SDCL 1-27-1 and 1-27-3 provide that records required to be kept by a public official, unless such records are confidential or secret, are available for public inspection during business hours at the place where the records are kept. Therefore, it is my opinion that a list of the names of county poor relief recipients may be inspected during regular business hours subject only to regulation and supervision by the appropriate county official. 1975-1976 AGR 75-164; 1945- 1946 AGR 342. Somewhat different considerations apply to the availability of information related to those receiving ADC benefits and food stamps.
SDCL 28-12-1 (Supp. 1982) authorizes the Department of Social Services to enter into agreements and contracts with the United States government for the purpose of participating in the Food Stamp Act of 1964. The secretary of the Department of Social Services is directed by the above statute to adopt rules and regulations in accordance with federal regulations implementing the Food Stamp Act. ARSD 67:13:01:01 mandates that the Department shall follow the federal regulations set out in 7 Code of Federal Regulations 270.1 to 274.14. It is those regulations, and federal case law interpreting them, that determine whether the names of food stamp recipients may be made available to the public.
The federal regulations do allow limited disclosure of information obtained from applicants for and recipients of food stamps. 7 CFR 272.1(c)(1) provides, in part, as follows:
Use or disclosure of information obtained from food stamp applicant households, exclusively for the Food Stamp Program, shall be restricted to persons directly connected with the administration or enforcement of the provisions of the Food Stamp Act or regulations, . . . or with other federal or federally aided, means-tested assistance programs such as Title IV-A (AFDC), IXX (Medicaid) or XVI (SSI), . . .
7 CFR 272.1(c)(2) sets forth other individuals to whom such information may be disclosed:
If there is a written request by a responsible member of the household, its currently authorized representative, or a person acting on its behalf to review material and information contained in its case file, the material and information contained in the case file shall be made available for inspection during normal business hours . . .
There are no provisions for public inspection of the type envisioned by your request. The Food Stamp Act manifests a strong congressional intent to maintain the confidentiality of recipient files. Roberts v. Austin, 632 F.2d 1202, 1203 (5th Cir. 1980), cert. denied, 454 U.S. 975, 102 S.Ct. 527, 70 L. Ed. 2d 395 (1981). Recipients of food stamps have a legitimate expectation that information they provide to Food Stamp Program officials will be kept confidential. This expectation is protected by the above regulations, federal case law and statute. See 7 U.S.C.A. 2020(e)(8). In addition, 7 C.F.R. 272.1(d)(1) sets out what information is available to the public. That subsection makes no provision for disclosure to the public of the names of Food Stamp Program participants. Therefore, it is my opinion that the names and other records of Food Stamp Program applicants and participants are only to be disclosed pursuant to the above regulations, and that it is not permissible to publish the names of such persons in the official minutes of the Gregory County Commission proceedings or the legal newspapers of Gregory County. Furthermore, it is not permissible to make the list of recipients or applicants available for public inspection on the bulletin board of the courthouse or for public officials to disclose the names of individuals applying for or receiving benefits, except as authorized by the regulations cited above.
In turning to the Aid to Dependent Children Program, the same interests in preserving participant confidentiality apply, although they are slightly relaxed. SDCL 28-1-29 provides as follows:
All applications and records concerning any applicant for, or recipient of, public assistance provided under the laws of this state through the Division of Social Welfare shall be confidential except:
(1) For inspection by persons duly authorized by this state or the United States in connection with their official duties;
(2) For the purpose of fair hearing provided by law.
SDCL 28-1-30 appears to make the names, addresses and amounts of assistance furnished to recipients available to the public. However, that statute is in apparent conflict with the federal statutes and regulations.
The federal statutes and regulations dealing with the aid of families with dependent children program set forth the conditions under which information concerning applicants and recipients can be disclosed. See 42 U.S.C.A. 602(a)(9) (Supp. 1982). 45 C.F.R. 205.50(a)(1)(i)(A) through (E) makes clear that information needed for the administration of state plans for financial assistance under the Social Security Act, or the investigation of possible criminal conduct in connection with the administration of a financial assistance program, for example, are purposes which warrant the release of information related to applicants and participants in such programs. 45 C.F.R. 205.50(a)(1)(iii) prohibits the disclosure of 'any information that identifies by name or address any applicant or recipient to any federal, state or local committee or legislative body other than in connection with any activity under paragraph (a)(1)(i)(E) of this section [pertains to governmental audit of program] is prohibited.' Federal case law supports a narrow scope of disclosure. See, e.g., Michigan Welfare Rights Organization v. Dempsey, 462 F.Supp. 227 (E.D. Mich. 1978). As to the public disclosure of the names of applicants and participants, 45 C.F.R. 205.50(a)(1)(iv) provides that:
Publication of lists or names of applicants and recipients will be prohibited. Exception. In respect to a state plan for financial assistance under Title I, IVA, X, IVX, XVI(AABD) of the Social Security Act, an exception to this restriction may be made by reason of the enactment or enforcement of state legislation, prescribing any conditions under which public access may be had to records of the disbursement of funds or payments under such titles within the state, if such legislation prohibits the use of any list or names obtained through access to such records for commercial or political purposes.
SDCL 28-1-29, supra, mandates that the records of all applicants for and recipients of, public assistance shall be confidential, with two exceptions. The public access requirement of SDCL 1-27-1 is therefore not applicable to such records. SDCL 28-1-1 (Supp. 1982) provides, in part, as follows:
The Department of Social Services shall provide a system of social security for the people of South Dakota, enable the State of South Dakota to comply with the provisions of the federal Social Security Act and other federal and state enactments relating to social services, except grants of federal funds for the purposes enumerated in these acts, . . .
Therefore, despite SDCL 28-1-30 and the exception to nondisclosure contained in 45 C.F.R. 205.50(a)(1)(iv), it is my opinion that compliance with the federal Social Security Act requires that the names of recipients, or applicants for, ADC benefits be kept confidential unless disclosure would be necessary under one of the exceptions to nondisclosure noted above. That such records are confidential has long been the opinion of my predecessors and I see no reason to break with that precedent. See 1945-1946 AGR 389. Therefore, it is my opinion that the names of applicants for, or recipients of ADC benefits may not be published in the official minutes of the Gregory County Commissioner's proceedings or the legal newspapers of Gregory County. Also, it is my opinion that a list of recipients or applicants cannot be posted on the courthouse bulletin board, or anyplace else, and that the disclosure of names is not to be made to members of the general public inquiring as to who has been, or is, receiving benefits.
Although the publication of this information would greatly assist in the prevention of fraud and waste in government, Congress seldom shows interest in protecting the taxpayer as much as the receiver of the taxpayer's money.
Respectfully submitted,
Mark V. Meierhenry
Attorney General
