State ex rel. Beacon Journal Publishing Co. v. City of Akron

[This opinion has been published in Ohio Official Reports at 

70 Ohio St.3d 605

.]




      THE STATE EX REL. BEACON JOURNAL PUBLISHING COMPANY ET AL.,
                APPELLEES, v. CITY OF AKRON ET AL., APPELLANTS.
 [Cite as State ex rel. Beacon Journal Publishing Co. v. Akron, 

1994-Ohio-6

.]
Public records—R.C. 149.43 does not mandate that a city disclose the Social
        Security numbers of its employees upon demand.
      (No. 93-2012—Submitted May 10, 1994—Decided October 26, 1994.)
        APPEAL from the Court of Appeals for Summit County, No. 15872.
                                  __________________
        {¶ 1} 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.
        {¶ 2} 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.
        {¶ 3} Sowa and the city provided copies of these records with the SSNs
deleted.
        {¶ 4} ABJ and Paynter then requested a copy of the same records complete
with SSNs.
        {¶ 5} Sowa and the city refused to disclose the employees’ SSNs.
                             SUPREME COURT OF OHIO




       {¶ 6} 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.
       {¶ 7} 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.
       {¶ 8} This cause is now before this court upon an appeal as of right.
                               __________________
       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, J.
       {¶ 9} 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.




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                                 January Term, 1994




                                            I
        {¶ 10} 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.
        {¶ 11} 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.”
        {¶ 12} 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
        {¶ 13} 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.




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                                  SUPREME COURT OF OHIO




         {¶ 14} 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 3107.45 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. * * *”
         {¶ 15} Records that are “public records” as defined in R.C. 149.43(A) must
be disclosed pursuant to R.C. 149.43(B).1
         {¶ 16} 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.2



1. 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.”

2. 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.




                                                  4
                                 January Term, 1994




        {¶ 17} “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.
        {¶ 18} 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

.
        {¶ 19} 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.
        {¶ 20} 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. “[T]he 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




                                           5
                             SUPREME COURT OF OHIO




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.

       {¶ 21} 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 (CA.10, 1984), 

726 F.2d 631, 635

.
                                          A
                               Expectation of Privacy
       {¶ 22} 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.
       “***




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                                January Term, 1994




       “(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.
       {¶ 23} 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

.
       {¶ 24} 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
       {¶ 25} 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.
       {¶ 26} 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




                                          7
                            SUPREME COURT OF OHIO




as voter registration numbers or addresses would provide the state with enough
information to distinguish voters with the same name.
       {¶ 27} 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:
       “[A]rmed 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.
       {¶ 28} After discussing the potential evils created by the release of voters’
SSNs, the Greidinger court stated:
       “Virginia’s voter registration form requires a registrant to supply, among
other 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.
       {¶ 29} 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.
       {¶ 30} 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, “[l]iberty cannot be preserved without a general knowledge among




                                          8
                                January Term, 1994




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.
       {¶ 31} 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.
       {¶ 32} 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.
       {¶ 33} 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.
       {¶ 34} 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




                                          9
                            SUPREME COURT OF OHIO




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.
       {¶ 35} 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.
       {¶ 36} 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.
       {¶ 37} 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 principles
of American constitutional law—ours is a government of limited power. We




                                          10
                                January Term, 1994




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.
       {¶ 38} The judgment of the court of appeals is reversed.
                                                                  Judgment reversed.
       MOYER, C.J., and A. WILLIAM SWEENEY and SHAW, JJ., concur.
       DOUGLAS, RESNICK, and FRANCIS E. SWEENEY, SR., JJ., dissent.
       STEPHEN R. SHAW, J., of the Third Appellate District, sitting for WRIGHT,
J.
                               __________________
       DOUGLAS, J., dissenting.
       {¶ 39} 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.
       {¶ 40} 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




                                          11
                             SUPREME COURT OF OHIO




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.
       {¶ 41} 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.
       {¶ 42} 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.
       {¶ 43} 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




                                         12
                                January Term, 1994




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

.
        {¶ 44} 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.
        {¶ 45} 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.




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                             SUPREME COURT OF OHIO




       {¶ 46} 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, “[t]he apparent purpose of this section is to define the
circumstances in which a 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

.
       {¶ 47} 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.
       {¶ 48} Notwithstanding this, the majority closes Section A of Part II of the
opinion with the remarkable statement that “[t]his 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




                                          14
                                January Term, 1994




is Greidinger v. Davis (C.A.4, 1993), 

988 F.2d 1344

. The majority’s reliance on
Greidinger is equally misplaced.
       {¶ 49} 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.
       {¶ 50} 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




                                         15
                            SUPREME COURT OF OHIO




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

.
       {¶ 51} Finding no real support for its holding, the majority then moves on
in Section B of the opinion and determines that “[h]aving 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.” (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.)
       {¶ 52} 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).
       {¶ 53} 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.
       {¶ 54} 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:




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                                  January Term, 1994




          “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.)
          {¶ 55} 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.)
          {¶ 56} 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.”
          {¶ 57} 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.)
          {¶ 58} Just as significantly, the second sentence of the section provides that:




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                             SUPREME COURT OF OHIO




       “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.)
       {¶ 59} 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.
       {¶ 60} 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




                                            18
                                 January Term, 1994




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.
        {¶ 61} 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.
        {¶ 62} Some members of the majority are fond of saying, 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.




                                          19
                                   SUPREME COURT OF OHIO




         {¶ 63} In this case, a unanimous court of appeals, Judges Baird, Dickinson
and Reece, in a well-reasoned opinion3 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.
         {¶ 64} 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 FRANCIS E. SWEENEY, SR., JJ., concur in the foregoing
dissenting opinion.
                                     __________________




3. 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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