Request By:
Hon. Frances Jones Mills
Secretary of State
Capitol Building
Frankfort, Kentucky 40601
Opinion
Opinion By: Steven L. Beshear, Attorney General; Walter C. Herdman, Asst. Deputy Attorney General
This is in response to your letter of October 28 in which you are apparently referring to the 1982 Amendment to KRS 118.315 requiring a person who signs a petition for an independent candidate to state his social security account number. This is used for the purpose of helping to identify the petitioner as a registered voter through the use of a computer which is more accurate and less time consuming. Though you do not state the specific question, we assume that you desire to know whether or not the social security account number requirement is to be interpreted as mandatory in the sense that failure or refusal on the part of the petitioner to do so on the petition will automatically disqualify him as a valid petitioner.
You also enclose correspondence addressed to you from a law firm in Washington that raises this question as it relates to an independent candidate filing under the Libertarian Party for the office of President of the United States in 1984 who is required to file under the terms of KRS 118.315.
The question raised involves the Federal Privacy Act of 1974, and particularly Section 7 of this Act found in Public Law 93-579 which reads as follows:
"(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.
(2) the provisions of paragraph (1) of this subsection 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 provisions of Section 7 prohibits any local government agency from denying an individual any right or privilege provided by law because of such individual's refusal to disclose his social security account number. However, this provision does not affect any such disclosure requirement in existence before Janaury 1, 1975.
As an example of the effect of the referred to section of the Privacy Act, we cite the case of
Brookens v. U.S., (1980) 627 F.2d 494, 201 U.S. App. D.C. 35 which held that the state department's use of its employees' social security account numbers for identification and verification did not violate this section since the department used the social security account numbers in its system of records before January 1, 1975 and thus came within the exemption to this section.
As previously indicated, the requirement that the petitioner state his social security account number when signing a petition on behalf of an independent candidate was inserted in KRS 118.315 by amendment in 1982, Chapter 394, Sec. 26 of the Acts, effective July 15, 1982. Thus, since this requirement became effective subsequent to the effective date of Section 7 of the Federal Privacy Act it must be construed as directory only.
Under the circumstances, the statutory requirement under KRS 118.315 that the petitioner indicate his social security account number on the petition is legal insofar as its use for identification purposes, but cannot be interpreted to be mandatory in the sense that failure or refusal on the part of the petitioner to state his social security account number will automatically disqualify him as a valid petitioner. Thus being directory, the fact that the petitioner does not indicate his social security account number, will not affect the validity of his signature in ascertaining the required number of petitioners necessary to establish the fact that the candidate has complied with the filing requirements of KRS 118.315.