April 19, 2001; City of Woodbury
4/19/2001 10:14:43 AM
This is an opinion of the Commissioner of Administration issued pursuant to section 13.072 of Minnesota Statutes, Chapter 13 - the Minnesota Government Data Practices Act. It is based on the facts and information available to the Commissioner as described below.
Facts and Procedural History:For purposes of simplification, the information presented by the government entity that requested this opinion are presented in summary form. Copies of the complete submissions are on file at the offices of IPA and, except for any data classified as not public, are available for public access. On February 26, 2001, IPA received a letter dated February 23, 2001, from Timothy Kelley, an attorney for the City of Woodbury. In his letter, Mr. Kelley requested that the Commissioner issue an advisory opinion regarding the rights of data subjects in relation to the collection of certain data. A summary of the facts is as follows. Mr. Kelley wrote that pursuant to Minnesota Statutes, section 624.713, a person who has been committed to a treatment facility as mentally ill may not be entitled to possess a pistol. He stated that an applicant is asked on the Minnesota Uniform Firearm Application (Application) whether or not s/he has been confined or committed to a treatment facility in Minnesota or elsewhere as mentally ill. Mr. Kelley wrote: To verify the answer given by the applicant, the City contacts the Minnesota Department of Human Services to verify the identity of a person committed that has applied for a handgun permit. The City is required to check this under State law, but the City has encountered problems with [DHS]. The [Application] does not ask for the applicant's Social Security Number, but [DHS] will not verify whether a person has been committed without the Social Security Number. Mr. Kelley noted that because Social Security numbers are private data pursuant to Minnesota Statutes, section 13.49, if the City were to collect such data, it would need to provide a Tennessen Warning notice. Mr. Kelley further noted that federal law also comes into play when a government entity collects an individual's Social Security number. He stated: ...In general, federal law prohibits states from denying an individual any right, benefit, or privilege provided by law based on an individual's refusal to disclose her social security number. If the City gave a legally sufficient Tennessen Warning, but the applicant refused to provide his or her social security number, would the City violate state and/or federal law by denying that person's application? Because DHS is involved in the issues Mr. Kelley raised, the Commissioner thought it would be appropriate to solicit the Department's comments. In response to the Commissioner's request for comments, Francis Bly of DHS submitted a letter dated March 9, 2001. She wrote: ...I am the Director of the Division which processes these [firearms] background checks. We do not, and have not in the past, required the Social Security number to obtain information on any individual... There are rare instances when our clerk finds a near match. This may be a full match on the name but birth date is one day different. It may be a match on everything but middle initial. In those instances, we notify the law enforcement office that we have a near match and that the only other identifier on the record is the Social Security number. In some instances, the requester may go back to the applicant and obtain the Social Security number. Without additional information a near match must be reported as no match. Our clerk has noticed that since having a near match situation, Woodbury added a line for the applicant's Social Security number. This is not a requirement, and was not discussed with Department staff. Issue:In his request for an opinion, Mr. Kelley asked the Commissioner to address the following issue:
Discussion:A government entity's collection, use, and dissemination of an individual's Social Security number is subject to requirements of both state and federal law. Pursuant to Minnesota Statutes, section 13.49, Social Security numbers are private data. When a government entity asks an individual to supply private data about him/herself, such as a Social Security number, the entity is required to give the individual a notice. See section 13.04, subdivision 2. This notice, commonly referred to as the Tennessen Warning, must advise the data subject of the following: 1) the purpose and intended use of the requested data within the collecting entity; 2) whether the individual may refuse or is legally required to supply the requested data; 3) any known consequence arising from supplying or refusing to supply private or confidential data; and 4) the identity of other persons or entities authorized by state or federal law to receive the data. Intertwined with the Tennessen Warning notice is the requirement that the collection and storage of all data on individuals and the use and dissemination of private and confidential data shall be limited to that necessary for the administration and management of programs specifically authorized by the Legislature or local governing body or mandated by the federal government. See Section 13.05, subdivision 3. In other words, as the Commissioner has stated in previous advisory opinions, not only must the Tennessen Warning describe which outside entities may be receiving the data, any such disseminations must be necessary for the administration and management of a particular program authorized by federal, state, or local law. Mr. Kelley described what he believes to be an adequate Tennessen notice: 1) the purpose and intended use of the requested data is to complete the application process; 2) the individual is not legally required to provide his or her Social Security number; 3) if an applicant refuses, it could result in the denial of his application; and 4) the City would be sharing the applicant's Social Security number with DHS. The Commissioner has the following comments regarding Mr. Kelley's proposed notice. First, it is not clear to the Commissioner whether Woodbury has authority to collect an applicant's Social Security number. As stated in section 13.05, subdivision 3, collection and storage of all data on individuals is limited to that necessary for the administration and management of programs specifically authorized by the Legislature or local governing body or mandated by the federal government. Mr. Kelley did not provide information demonstrating that the collection of Social Security numbers meets the requirement set forth in section 13.05. Second, it is not clear to the Commissioner that state or federal authority exists for Woodbury to disseminate an applicant's Social Security number to the Department of Human Services (DHS). The Commissioner is not aware of any such authority and neither Mr. Kelley nor DHS provided any related citations. Therefore, if Woodbury does have authority to collect an applicant's Social Security number, to comply with state law, the City must obtain the individual's consent prior to disseminating the data to DHS. When a government entity collects Social Security numbers, there are also federal law implications. The federal Privacy Act of 1974 requires a state and local government entity requesting Social Security numbers to provide the following information: 1) whether the disclosure is mandatory or voluntary; 2) how the entity will use the number; and 3) under what statutory or other authority the entity is requesting the number. Further, federal law makes it illegal for federal, state, and local government agencies to deny any rights, privileges or benefits to individuals who refuse to provide their Social Security numbers unless the disclosure is required by federal statute, or the disclosure is to an agency for use in a record system which required the Social Security number before 1975. See 5 USC 552a, (note). In the case at hand, Mr. Kelley did not provide any information indicating that an applicant is required by federal law to supply his/her Social Security number in order to apply for a gun permit. Therefore, if Woodbury did request an applicant's Social Security number and s/he refused to supply the information, pursuant to federal law, it appears that Woodbury would not be able to use that as a basis to deny the applicant a permit. However, Woodbury also must take into account the requirements set forth in Chapter 13, as discussed above. Woodbury may collect Social Security numbers only if they are necessary for the administration and management of programs specifically authorized by the Legislature or local governing body or mandated by the federal government. Opinion:Based on the facts and information provided, my opinion on the issue that Mr. Kelley raised is as follows:
Signed:
David F. Fisher
Dated: April 19, 2001
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Data subjects
Educational data
Informed consent
Law enforcement data
Tennessen warning
Data necessary for administration and management of programs (13.05, subd. 3)
Firearms background check
Tennessen warning notice
Tennessen warning and federal Privacy Act notices required
Background checks
