THE STATE EX REL. BEACON JOURNAL PUBLISHING COMPANY ET AL.,
APPELLEES, v. CITY OF AKRON ET AL., APPELLANTS.
State ex rel. Beacon Journal Publishing Co. v. Akron
No. 93-2012
SUPREME COURT OF OHIO
70 Ohio St. 3d 605; 1994 Ohio LEXIS 2407
May 10, 1994, Submitted
October 26, 1994, Decided
APPEAL from the Court of Appeals for Summit County, No. 15872.
Appellee Beacon Journal Publishing Company ("ABJ") publishes the
newspaper known as The Akron Beacon Journal. Appellee Robert
Paynter is a project editor and employee of ABJ. Appellant Linda
Sowa was the finance director of the appellant city of Akron.
ABJ and Paynter asked the city and Sowa to provide them with
computer tape records of the city's year-end employee master files
for the years 1990 and 1991 pursuant to R.C. 149.43, Ohio's public
records statute. These payroll files contain various information
including employees' names, addresses, telephone numbers, Social
Security numbers ("SSNs"), birth dates, education, employment
status and positions, pay rates, service ratings, annual and sick
leave information, overtime hours and pay, and year-to-date
employee earnings. The city has approximately two thousand five
hundred employees. Thirteen employees have access to the
computerized employee master payroll file.
Sowa and the city provided copies of these records with the SSNs
deleted. ABJ and Paynter then requested a copy of the same
records complete with SSNs. Sowa and the city refused to disclose the
employees' SSNs.
In August 1992, ABJ and Paynter filed a complaint in mandamus in
the Court of Appeals for Summit County against Sowa and Akron,
alleging that, pursuant to R.C. 149.43, they were entitled to
obtain the payroll records complete with SSNs. Sowa and the city
denied the existence of this obligation, alleging that SSNs are
not "records" as that term is defined in R.C. 149.011(G), and that
disclosure of employees' SSNs would violate the employees' right
to privacy.
The court of appeals granted the petition for mandamus. The
appellate court found that SSNs are public records for purposes of
R.C. 149.43, and that their disclosure would not violate the right
to privacy. This cause is now before this court upon an appeal as of
right.
Judgment reversed.
COUNSEL: Roetzel & Andress, Ronald S. Kopp and Amie L. Bruggeman,
for appellees.
Max Rothal, Director of Law, and Deborah M. Forfia, Assistant
Director of Law, for appellants.
Paul R.Q. Wolfson and David C. Vladeck, urging reversal
for amicus curiae, Public Citizen Litigation Group.
Marc Rotenberg and David L. Sobel, urging reversal for amicus
curiae, Computer Professionals for Social Responsibility.
PFEIFER, MOYER, A.W. SWEENEY, SHAW, DOUGLAS, RESNICK, F.E.
SWEENEY
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:
"* * *
"(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.
II.
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). n1
- - - - - - - - - - - - - - - - - -Footnotes- - - - - - - - - - -
- - - - - - -
n1 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."
- - - - - - - - - - - - - - - - -End Footnotes- - - - - - - - - -
- - - - - - -
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. n2
- - - - - - - - - - - - - - - - - -Footnotes- - - - - - - - - - -
- - - - - - -
n2 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.
- - - - - - - - - - - - - - - - -End Footnotes- - - - - - - - - -
- - - - - - -
"The cases sometimes characterized as protecting 'privacy' 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 United 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. "The
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.
A.
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.
"* * *
"(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 other 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:
"Armed 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
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, were
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.
We 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 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.
DOUGLAS, J., dissenting. Jonathan Swift (1667-1745), an
Eighteenth Century English satirist, poet and Anglican clergyman,
once said: "Invention is the talent of youth, as judgment is of
age." International Dictionary of Thoughts (1969) 405. Today, by
inventing a social security number exception to the Public Records
Law, R.C. 149.43, a majority of this court has glorified the
talent of youth -- invention -- and has scorned the talent of age
-- judgment. Those who would decry judicial activism take heed.
Today's decision is judicial activism at its best. Being troubled
that a person's social security number might become the subject of
public scrutiny (a proposition to which I am not unsympathetic),
the majority fashions yet another exception to R.C.
149.43 and concludes that the disclosure of the city of Akron
employees' social security numbers to appellees would violate the
employees' constitutional right to privacy. Because there is no
legal authority for such a holding and, indeed, because the law is
actually to the contrary, I must respectfully dissent.
In support of its novel proposition, the majority cites no
section of the Ohio Revised Code. There is good reason for this.
There is none. The majority does not cite any provision of the
Ohio Constitution supporting its position. There is good reason
for this. There is none. The majority does not cite any federal
statute in support of its holding. Again, there is good reason.
There is none. No provision of the United States Constitution is
cited in support. Why? There is none. No case law either federal
or state of Ohio is given as authority. Why? Same answer -- there
is none.
Simply put, the majority has concocted an exception
to R.C. 149.43 that does not, in law, exist. In doing so, the
majority creates a corresponding right where none presently exists
under either Ohio or federal law. In the best tradition of Justice
William O. Douglas's discovery of a "penumbra," in
Griswold v. Connecticut (1965), 381 U.S. 479, 85 S.Ct. 1678, 14 L.
Ed. 2d 510, today the majority fabricates a social security
penumbra from whole cloth.
In support of its position, the majority cites Nixon v. Admr.
of Gen. Serv. (1977), 433 U.S. 425, 97 S.Ct. 2777, 53 L. Ed. 2d
867. The majority suggests that Nixon is persuasive authority for
the majority's holding but then, almost immediately, the majority
states that Nixon is "* * * not dispositive of the case before us
* * *." The majority does not tell us how Nixon is "not
dispositive." The reason for this may be that it is so obviously
inapplicable.
Nixon involved a complaint filed by the former President in the
District Court of the District of Columbia, challenging the
constitutionality of the Presidential Recordings and Materials
Preservation Act ("Act"). The District Court held that the claims
set forth by the former President lacked merit and, accordingly,
dismissed the complaint. The United States Supreme Court affirmed
the judgment of the district court, holding, among
other things, that the Act was not an unconstitutional
infringement on the former President's right of privacy.
Importantly, the court noted that a "claim of invasion of his
privacy cannot be considered in the abstract; rather, the claim
must be considered in light of the specific provisions of the Act,
and any intrusion must be weighed against the public interest in
subjecting the Presidential materials of appellant's
administration to archival screening." Id. at 458, 97 S.Ct. at
2797-2798, 53 L. Ed. 2d at 900.
From this "not dispositive" holding, the majority forms an
abstract legal standard, stating that "* * * there is a federal
right to privacy which protects against governmental disclosure of
the private details of one's life." This statement by the
majority, if derived from Nixon, is not just overbroad. It is just
plain wrong! Nixon involved federal questions, federal
legislation, and federal officials. The Supreme Court did conclude
that the former president may have a legitimate expectation of
privacy in some of his personal communications. Id. at 465, 97
S.Ct. at 2801, 53 L. Ed. 2d at 905. However, the Supreme
Court did not hold in Nixon, nor has it ever held or even implied,
that an absolute federal right to privacy exists for all
individuals under all circumstances.
With the "not dispositive" Nixon case lending little or no
solace or support for its position, the majority then turns for
help to Section 7 of the Privacy Act of 1974 and concludes that
the city employees have an expectation of privacy in their social
security numbers under the Act. This Act provides in relevant part
that:
"(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.
"* * *
"(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." (Emphasis
added.) Section 552a note (Disclosure of Social Security Number),
Title 5, U.S.Code, Pub.L. 93-579, Section 7, 88 Stat.
1896, 1909.
The intent of the federal statute is clear. It is apparent, at
least to me, that this statute has nothing to do with a request by
a newspaper to obtain records from a municipality. First, the
Privacy Act of 1974 applies only when an entity requesting the
information is an instrument of the federal government or the
individual states. Doyle v. Wilson (D.Del.1982), 529 F. Supp.
1343, 1348-1349; Am. Fedn. of State, Cty. & Mun. Emp. v. Albany
(1986), 81 Ore.App. 231, 725 P.2d 381; and Freeman v. Koerner Ford
of Scranton, Inc. (1987), 370 Pa.Super 150, 536 A.2d 340. Second,
"the apparent purpose of this section is to define the
circumstances in which government may require individuals to
disclose their numbers, to allow individuals to make informed
choices about whether to disclose their numbers in other
circumstances and to provide protection for individuals who decide
not to make voluntary disclosure. Nothing in the act expressly
prohibits the government from disclosing the numbers once they are
in its possession" (Emphasis added.) Am. Fedn. of State,
Cty. & Mun. Emp., supra, 81 Ore.App. at 234, 725 P.2d at 383.
Obviously, the Privacy Act of 1974 does not support the holding
of the majority, but even if it did, the Act only applies to
instruments of the federal government or the individual states.
The Akron Beacon Journal may be a government unto itself. What it
assuredly is not is an instrument of government.
Notwithstanding this, the majority closes Section A of Part II
of the opinion with the remarkable statement that "this
legislative scheme is sufficient to create an expectation of
privacy in the minds of city employees concerning the use and
disclosures of their SSNs." Just because one believes or even
asserts that one has an expectation of privacy in a particular
circumstance does not make it so in law.
Having concluded Section A of Part II of the opinion as set
forth above, the majority then moves to Section B, which is titled
"Weighing Interests Benefited by Disclosure Against Privacy
Interests." The only citation of authority in Section B is
Greidinger v. Davis (C.A.4, 1993), 988 F.2d 1344. The majority's
reliance on Greidinger is equally misplaced.
In Greidinger, the court held that two Virginia
statutes, which required disclosure of a voter registrant's social
security number as a condition to the right to vote, created an
impermissible burden on the exercise of the fundamental right to
vote. In weighing this burden, the court considered Section 7 of
the Privacy Act of 1974 (which, as we have seen, is not applicable
here), and Exemption 6 of the federal Freedom of Information Act
("FOIA"), Section 552(b)(6), Title 5, U.S.Code. Section 552(b)(6)
provides that certain personnel and medical files are not subject
to disclosure if disclosure would "constitute a clearly
unwarranted invasion of personal privacy." The protections
afforded under the federal Privacy Act of 1974 and FOIA are a
product of statute, not of federal common-law privacy rights.
Further, our Ohio statute, R.C. 149.43, does not include an
exemption from disclosure comparable to that found in Section
552(b)(6). In any event, Greidinger does not stand for the
proposition, which was not even mentioned in the opinion, that a
voter registrant has a constitutional right to privacy.
Further, United States Supreme Court decisions which
have discussed privacy protections for individuals do not support
the majority's blanket conclusion that "the disclosure of the SSNs
would violate the federal constitutional right to privacy." In
Doyle, supra, the court, after examining various Supreme Court
decisions and decisions from other courts, concluded that "the
constitutional right to privacy embodies solely 'those personal
rights that can be deemed fundamental or implicit in the concept
of ordered liberty.' * * * The activities ordinarily embraced by
this definition relate to the intimate facets of an individual's
personal life, namely, marriage, procreation, contraception,
family relationships, child rearing or education. * * * The courts
accordingly have held, and this Court concurs in that view, that
mandatory disclosure of one's social security number does not so
threaten the sanctity of individual privacy as to require
constitutional protection." (Citations omitted and emphasis
added.) Doyle, supra, 529 F. Supp. at 1348. Indeed, Doyle, which
the majority cites in support, actually undermines its position.
Further, see, e.g., Paul v. Davis (1976), 424 U.S. 693, 712-713,
96 S.Ct. 1155, 1166, 47 L. Ed. 2d 405, 420-421.
Finding no real support for its holding, the majority then
moves on in Section B of the opinion and determines that "having
held that employees of the city have a reasonable expectation of
privacy regarding the disclosure of their Security numbers, we
must weigh these privacy interests against those favoring
disclosure." (Emphasis added.) This determination clearly
misstates the law. In State ex rel. Toledo Blade Co. v. Univ. of
Toledo Found (1992), 65 Ohio St.3d 258, 266, 602 N.E.2d 1159,
1164-1165, we held that: "It is the role of the General Assembly
to balance the competing concerns of the public's right to know
and individual citizens' right to keep private certain information
that becomes part of the records of public offices. The General
Assembly has done so, as shown by numerous statutory
exceptions to R.C. 149.43(B), found in both the statute itself and
in other parts of the Revised Code." (Emphasis added.)
R.C. 149.43 requires that all public records be made available
to any person. See State ex rel. Steckman v. Jackson (1994), 70
Ohio St.3d 420, 639 N.E.2d 83. Any exception to this
rule must be found within the statute itself, which includes an
exception for those "records the release of which is prohibited by
state or federal law." R.C. 149.43(A)(1).
As we have seen, there is no federally mandated exception to
R.C. 149.43. In Ohio, the General Assembly has provided specific
circumstances where disclosure of certain records is prohibited.
Examples follow.
R.C. 2505.073 deals with the right of a minor to appeal the
dismissal, by a juvenile court, of her complaint to have an
abortion without parental notification. R.C. 2505.073(B) provides
that:
"All proceedings under division (A) of this section shall be
conducted in a manner that will preserve the anonymity of the
appellant on appeal. All papers and records that pertain to an
appeal under this section shall be kept confidential and are not
public records under section 149.43 of the Revised Code."
(Emphasis added.)
R.C. 3701.241 deals with duties of the Director of Health
related to AIDS and HIV. R.C. 3701.241(A)(7) provides, in part,
that:
"Information obtained or maintained under the partner
notification system is not a public record under section 149.43 of
the Revised Code and may be released only in accordance
with division (C) of section 3701.243 of the Revised Code."
(Emphasis added.)
Specifically, with regard to a person's social security number,
R.C. 1349.17 restricts the recording of credit card, telephone or
social security numbers. Subject to certain exceptions found in
R.C. 1349.17(B), R.C. 1349.17(A)(2) provides that:
"No person shall record or cause to be recorded either of the
following:
"* * *
"(2) The telephone number or social security account number of
the other party to a transaction, when payment is made by credit
card charge agreement, check, bill of exchange, or other draft."
R.C. 4501.15 also restricts disclosure of social security
numbers. The first sentence of R.C. 4501.15 provides that:
"The department of public safety shall not provide social
security numbers from its driver license and vehicle registration
records to any person, except local, state, or federal
governmental agencies." (Emphasis added.)
Just as significantly, the second sentence of the
section provides that:
"This section does not preclude the registrar from reporting a
person's social security number if the number was provided in the
request for information." (Emphasis added.)
R.C. 742.41 involves, in part, access to records of the Police
and Firemen's Disability and Pension Fund. R.C. 742.41 provides
the following:
"(A) As used in this section:
"* * *
"(2) 'Personal history record' includes a member's * * * name,
address, phone number, social security number * * * and any other
information deemed confidential by the trustees of the fund.
"(B) * * * The records of the board shall be open for public
inspection except for the following, which shall be excluded,
except with the written authorization of the individual concerned:
"(1) The individual's personal history record[.]" (Emphasis
added.)
Thus, it is clear that if the General Assembly had chosen to
make a social security number exception to R.C. 149.43, given R.C.
2505.073(B), 3701.241(A)(7), 1349.17(A)(2), 4501.15, and
742.41(A)(2) and (B)(1), it certainly knew how to do so. The
simple fact is that there is no statute which prohibits the
release of a city employee's social security number. Whatever our
individual personal preference might be, that preference should
not be permitted to invade the mandates of the law.
In today's multifarious society, social security numbers have
become an important means of identification. Our social
security number in many instances has become our name. It is
commonplace to be asked to reveal our number, both in the private
sector and in contacts with the government. For example, the
average citizen is asked to reveal his or her number on banking
forms, to cash checks, to apply for loans or credit cards. Job
application forms request social security numbers. College
students' grades are often posted by social security number.
Question No. 1 on the State of Ohio Employees Ohio Med Benefits
Claim Form is the social security number of the patient-claimant.
Not until question No. 4 is the patient's name even asked. Blue
Cross Blue Shield of Ohio Explanation of Benefits Form gives the
claimant's social security number as "Your identification number."
The claimant's name follows later on the form. The list is
endless. We are even required to reveal our numbers when applying
for a marriage license. R.C. 3101.05; see, also, R.C. 4513.361,
which prohibits the giving of a false social security number to a
law enforcement officer who is in the process of issuing a traffic
ticket or complaint. Does the average citizen really have
an expectation of privacy in his or her social security
number as the majority seems to think? The law clearly answers
that question in the negative.
The fear (and I concede that it is a genuine concern) is that a
person's social security number in the wrong hands can result in
criminal conduct. This is true also, of course, of checks, credit
cards and other instruments that are negotiable. While this is of
concern, the answer is that criminal conduct should be punished by
criminal sanctions. Some people drive while intoxicated, but we do
not, because of this, prohibit everyone from driving. Some people
shoplift, but we do not close all stores because that is so.
Some members of the majority are fond of saving, when a
particular issue is presented to the court for decision, that "the
matter should be left to the legislature." Well, in this case, the
matter has been left to the legislature and no exception to R.C.
149.43 for social security numbers has been enacted. Now the
majority's answer is different. Where the legislature has not
acted to create an exception, we had better do so! Let the
judicial activism argument now be put to rest.
In this case, a unanimous court of appeals, Judges Baird,
Dickinson and Reece, in a well-reasoned opinion n3 held
that a writ should be granted ordering the release of the
requested social security numbers. In State ex rel. Lippitt v.
Kovacic (1991), 70 Ohio App.3d 525, 591 N.E.2d 422, a unanimous
court of appeals, Judges John V. Corrigan, Krupansky and Patton of
the Court of Appeals for Cuyahoga County, held that records which
contained social security numbers were public records and should
be released upon proper request. In this case, we should follow --
others have led.
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- - - - - - -
n3 I do not agree with the decision of the court of appeals to
deny relators' attorney fees. See State ex rel. Fox v. Cuyahoga
Cty. Hosp. Sys. (1988), 39 Ohio St.3d 108, 112-114, 529 N.E.2d
443, 447-448 (Douglas, J., concurring in part and dissenting in
part).
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- - - - - - -
Because the majority's decision is based on personal
predilections and not the law, I must respectfully dissent. I
would affirm the judgment of the court of appeals
granting relators' writ.
RESNICK and F.E. SWEENEY, JJ., concur in the foregoing
dissenting opinion.
