Some of the text below may have application beyond the dispute in Texas over the existence of Social Security Numbers in property record filings.... Read at your risk, at your leisure, etc.  The research here was conducted by a County Attorney and sounds reasonable.... Of course, so does that Attorney General's opinion.  I'm posting this, in part, because this issue may be coming to your state soon, if it has not already....

 

There is not a single Texas law or County policy that I can find which requires SSN on real property instruments. Again, the federal statute provides that SSNs that are "obtained or maintained by authorized persons pursuant to any provision of law enacted on or after October 1, 1990" are confidential. See 42 U.S.C.A. sec. 405(c)(2)(C)(viii)(I). The flip-side of this is that if no law requires SSNs, or the law requiring SSNs was enacted prior to 10-1-90, SSNs are not confidential. See ORD2002-3453 (2002) ("to the extent the social security information was obtained or is maintained by the city solely under a policy or practice to identify individuals, we advise that such a policy or practice does not constitute a law enacted on or after October 1, 1990 authorizing the city to obtain or maintain a social security number. In that case, we have no basis for concluding that any of the social security numbers in the file are confidential under section 405(c)(2)(C)(viii)(I) <http://web2.westlaw.com/find/default.wl?tf=-1&rs=WLW7.02&fn=_top&sv=Split&tc=-1&findtype=L&docname=42USCAS405&db=1000546&vr=2.0&rp=%2ffind%2fdefault.wl&mt=Westlaw> , and therefore excepted from public disclosure under section 552.101 <http://web2.westlaw.com/find/default.wl?tf=-1&rs=WLW7.02&fn=_top&sv=Split&tc=-1&findtype=L&docname=TXGTS552.101&db=1000301&vr=2.0&rp=%2ffind%2fdefault.wl&mt=Westlaw>  on the basis of that federal provision."); ORD2005-09250 (2005) ("The 1990 amendments to the Social Security Act, 42 U.S.C. § 405(c)(2)(C)(viii)(I) <http://web2.westlaw.com/find/default.wl?tf=-1&rs=WLW7.02&fn=_top&sv=Split&tc=-1&findtype=L&docname=42USCAS405&db=1000546&vr=2.0&rp=%2ffind%2fdefault.wl&mt=Westlaw> , make confidential social security numbers and related records that are obtained or maintained by a state agency or political subdivision of the state pursuant to any provision of law enacted on or after October 1, 1990. See 42 U.S.C. § 405(c)(2)(C)(viii)(I) <http://web2.westlaw.com/find/default.wl?tf=-1&rs=WLW7.02&fn=_top&sv=Split&tc=-1&findtype=L&docname=42USCAS405&db=1000546&vr=2.0&rp=%2ffind%2fdefault.wl&mt=Westlaw> . You have cited no law, nor are we aware of any law enacted on or after October 1, 1990, that authorizes the clerk to obtain or maintain a social security numbers. Therefore, we have no basis for concluding that any of the social security numbers in the submitted records are confidential under section 405(c)(2)(C)(viii)(I) <http://web2.westlaw.com/find/default.wl?tf=-1&rs=WLW7.02&fn=_top&sv=Split&tc=-1&findtype=L&docname=42USCAS405&db=1000546&vr=2.0&rp=%2ffind%2fdefault.wl&mt=Westlaw> , and therefore excepted from public disclosure under section 552.101 <http://web2.westlaw.com/find/default.wl?tf=-1&rs=WLW7.02&fn=_top&sv=Split&tc=-1&findtype=L&docname=TXGTS552.101&db=1000301&vr=2.0&rp=%2ffind%2fdefault.wl&mt=Westlaw>  on the basis of that federal provision. We caution, however, that section 552.352 of the Act imposes criminal penalties for the release of confidential information. Prior to releasing any social security numbers information, you should ensure that no such information was obtained or is maintained by the clerk pursuant to any provision of law enacted on or after October 1, 1990."); ORD2005-05351 (2005) (same); ORD2005-05219 (2005) ("We note that the submitted information contains the social security number of a member of the public. The 1990 amendments to the federal Social Security Act, 42 U.S.C. § 405(c)(2)(C)(viii)(I) <http://web2.westlaw.com/find/default.wl?tf=-1&rs=WLW7.02&fn=_top&sv=Split&tc=-1&findtype=L&docname=42USCAS405&db=1000546&vr=2.0&rp=%2ffind%2fdefault.wl&mt=Westlaw> , make confidential social security number and related records that are obtained or maintained by a state agency or political subdivision of the state pursuant to any provision of law enacted on or after October 1, 1990. See id. We have no basis for concluding that the social security number at issue is confidential under section 405(c)(2)(C)(viii)(I) <http://web2.westlaw.com/find/default.wl?tf=-1&rs=WLW7.02&fn=_top&sv=Split&tc=-1&findtype=L&docname=42USCAS405&db=1000546&vr=2.0&rp=%2ffind%2fdefault.wl&mt=Westlaw> , and therefore excepted from public disclosure under section 552.101 <http://web2.westlaw.com/find/default.wl?tf=-1&rs=WLW7.02&fn=_top&sv=Split&tc=-1&findtype=L&docname=TXGTS552.101&db=1000301&vr=2.0&rp=%2ffind%2fdefault.wl&mt=Westlaw>  on the basis of that federal provision. We caution, however, that section 552.352 of the Act imposes criminal penalties for the release of confidential information. Prior to releasing any social security number information, you should ensure that no such information was obtained or is maintained by the county clerk pursuant to any provision of law enacted on or after October 1, 1990.");ORD 2002-1357(2002); ORD-662 (1994)(SSNs not private under 552.101).

 

Indeed, in GA-0203 (2003), the AG opined that a county clerk did not have to comply with the order of a board of judges to redact SSNs from the records on the county's website.

 

Judicial Records

 

In addition to believing that since the records are already "public" a clerk is under no duty to redact SSNs, I question whether the statutes requiring SSNs in certain filings are even laws requiring the obtaining or maintaining of SSNs enacted on or after 10-1-90. This is based in part on the AG's own rulings. For example, in ORD2002-0602 (2002) a clerk maintained that the SSNs in a final order on child support were confidential because Section 105.006 (a)(1) of the Family Code required that the final order contain SSNs. The clerk noted that this provision of the Family Code was not passed until 2003. In holding that the SSNs were not confidential under the federal law, the AG said:

 

"You note that this section was enacted on or after October 1, 1990. [FN4] <http://web2.westlaw.com/result/%09%09%09%09%09%09#Ib53c989386ed11db8c808ed486e3a5d7>  You contend that because the clerk uses final orders, which contain social security numbers, to set up child support accounts, the clerk maintains these social security numbers pursuant to a provision of law enacted on or after October 1, 1990. You assert that these social security numbers thus are confidential under section 405(c)(2)(C)(viii)(I) <http://web2.westlaw.com/find/default.wl?tf=-1&rs=WLW7.02&fn=_top&sv=Split&tc=-1&findtype=L&docname=42USCAS405&db=1000546&vr=2.0&rp=%2ffind%2fdefault.wl&mt=Westlaw>  of the Social Security Act and therefore are excepted from disclosure under section 552.101 of the Government Code <http://web2.westlaw.com/find/default.wl?tf=-1&rs=WLW7.02&fn=_top&sv=Split&tc=-1&findtype=L&docname=TXGTS552.101&db=1000301&vr=2.0&rp=%2ffind%2fdefault.wl&mt=Westlaw> . We have considered your arguments. We conclude, however, that section 105.006(a)(1) of the Family Code <http://web2.westlaw.com/find/default.wl?tf=-1&rs=WLW7.02&fn=_top&sv=Split&tc=-1&findtype=L&docname=TXFAS105.006&db=1000301&vr=2.0&rp=%2ffind%2fdefault.wl&mt=Westlaw>  does not authorize the clerk to obtain or maintain a social security number. Thus, you have cited no law, nor are we aware of any law enacted on or after October 1, 1990 that authorizes the clerk to obtain or maintain a social security number. Therefore, these social security numbers are not excepted from disclosure under section 552.101 of the Government Code <http://web2.westlaw.com/find/default.wl?tf=-1&rs=WLW7.02&fn=_top&sv=Split&tc=-1&findtype=L&docname=TXGTS552.101&db=1000301&vr=2.0&rp=%2ffind%2fdefault.wl&mt=Westlaw>  and must be released."

 

See ORD2002-0602. This section of the Family Code is no different than the other Texas statutes requiring SSNs in filings. Thus, none of these statutes must be post-10/1/90 laws as intended by the federal statute.

 

 

By the way, there is a situation in some states that could also one day use a bit of "public airing"..... licenses and credentialing documents that make use of Social Security Numbers as a means of identification.  I know of one in particular that affects a host of folks in my own state, but would prefer not to get that particular "offending agency" in any legal hot water....... 

 

Finally, the issue here regarding privacy and public records is one that I've spent several years discussing, debating, etc.  It is not entirely black and white.  Take tax liens for instance.  Those records now contain partial SSNs, but previously contained complete SSNs.  Other records may contain either partial of full SSNs.  Since I have a somewhat common name.... there are three or so Douglas P. Allen names in Austin..... a dozen or so Douglas Allens, etc.,  I sometimes worry that another Doug, Douglas or Douglas P. Allen may prove to be a "bad actor", may have public record filings indicating that bad behavior, and that some potential lender, or credit reporting agency may some day think that the "bad" Doug Allen is really me!  I certainly want there to be some means by which a potential creditor can differentiate between a Doug Allen with a "record" of some sort and my own record.   Believe it or not, that recently came into play when I went through a house refinance...... and a judgment for some $ 17K in medical bills from a local hospital was attributed to a "gentleman" with my name!

 

Douglas P. Allen, CRM, CDIA+

 


List archives at http://lists.ufl.edu/archives/recmgmt-l.html
Contact [log in to unmask] for assistance