The opinion of the court was delivered by: LATCHUM
In this § 1983 suit, plaintiff, John B. Doyle, Jr., has filed a two count complaint seeking compensatory and punitive damages from two employees of the Justice of the Peace Court and a New Castle County Police Officer for alleged deprivation of his constitutional rights, arising from two separate incidents. In addition, plaintiff asks this Court to enjoin the police officer and any other employees of the police department from further unspecified harassment and from causing him additional damages. Plaintiff's claims were tried to the Court on December 8, 1981. This opinion represents the Court's findings of fact and conclusions of law pursuant to Rule 52(a), F.R.Civ.P.
I. Social Security Number Claim
Thereafter, Doyle sent his wife to Justice of the Peace Court No. 11 to obtain a refund of the $ 19.50 which Doyle had previously paid. Mrs. Doyle was advised by Deborah Salter, Chief Clerk of the Court, that because over 30 days had passed since the fine had been paid, a cash refund could not be given and it would be necessary to request the State Treasurer to issue a check to Doyle. For this purpose, the clerk's office would submit a routine voucher to the State Treasurer's office containing Doyle's name, address, phone number and social security number for identification purposes, and information pertinent to the court proceeding and the subsequent nolle prosequi. Salter requested Mrs. Doyle to have her husband contact the clerk's office directly to prepare the necessary papers.
Doyle subsequently telephoned Salter, but refused to reveal his social security number. When Salter asked Doyle the reason for his refusal, Doyle replied that it was "none of her business" and that it was "a private matter." On March 30, 1981, Salter duly submitted the refund voucher without Doyle's social security number. One day later, Salter received a memorandum from Phyllis Wilson, a secretary in the Administrative Office of the Justice of the Peace Court, through which the voucher had been routed, advising her that the State Treasurer's Office would not accept the voucher without the recipient's social security number. A copy of this memorandum was transmitted to Doyle.
Doyle filed this suit on April 4, 1981, alleging that his right to privacy had been infringed by the Justice of the Peace Court's refusal to refund the $ 19.50 without disclosure of his social security number. (Docket Item ("D.I.") 1.) The complaint, as originally filed, sought compensatory and punitive damages from, and an award of costs and attorney's fees against, the State of Delaware, and an order enjoining the Police Department of New Castle County from any further harassment of Doyle. On June 22, 1981, this Court dismissed plaintiff's complaint on grounds of sovereign immunity, inadequate factual basis for jurisdiction, lack of personal jurisdiction over New Castle County, and failure to comply with the pleading requirements of the federal rules. (D.I. 11.) The Court subsequently granted relief from judgment and allowed Doyle to amend his complaint to substitute the proper parties. (D.I. 16.) As to that portion of the complaint alleging infringement of his right to privacy, Doyle named Deborah Salter and Phyllis Wilson as defendants. (D.I. 18.) After suit was filed and prior to the amendment of plaintiff's complaint, the State Treasurer refunded the $ 19.50 to Doyle without first compelling disclosure of his social security number.
Both at trial and in their earlier pretrial motions, defendants Salter and Wilson concentrated their efforts solely on establishing affirmative defenses to this suit, most notably the defense of official immunity. The Court agrees, for the reasons discussed later in this opinion, that these defendants are immune from personal damage liability and, therefore, this portion of plaintiff's suit, which seeks only damages and not declaratory or injunctive relief, is barred. Nonetheless, the Court feels constrained to address at the outset the merits of plaintiff's underlying claim in order to give some guidance to the State Treasurer's Office as to its obligations under federal law and to forestall the filing of similar suits in the future.
Generally, the constitutional right to privacy embodies solely "those personal rights that can be deemed fundamental or implicit in the concept of ordered liberty." McElrath v. Califano, 615 F.2d 434, 441 (C.A.7, 1980), quoting Roe v. Wade, 410 U.S. 113, 152, 93 S. Ct. 705, 726, 35 L. Ed. 2d 147 (1973). 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. Paul v. Davis, 424 U.S. 693, 713, 96 S. Ct. 1155, 1166, 47 L. Ed. 2d 405 (1976); Jaffess v. Secretary, Dept. of Health, Ed. & Welfare, 393 F. Supp. 626, 629 (S.D.N.Y.1975). 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. See McElrath v. Califano, supra, 615 F.2d at 441; Greater Cleveland Wel. Rights Org. v. Bauer, 462 F. Supp. 1313, 1318-19 (N.D.Ohio 1978); Cantor v. Supreme Court of Pennsylvania, 353 F. Supp. 1307, 1321-22 (E.D.Pa.), aff'd without opinion, 487 F.2d 1394 (C.A.3, 1973); Conant v. Hill, 326 F. Supp. 25, 26 (E.D.Va.1971).
The lack of constitutional support for plaintiff's argument does not end the Court's inquiry, however, because the utilization of social security numbers is regulated to some extent by federal statute. In the factual posture presented by this case, two statutory provisions are pertinent: Section 7 of the Privacy Act of 1974 and a 1976 amendment to the Social Security Act, codified at 42 U.S.C. § 405(c)(2)(C).
Section 7 of the Privacy Act broadly prohibits a state from penalizing an individual in any way because of his failure to reveal his social security number upon request, except in certain narrowly defined circumstances. This provision states in relevant part:
(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-
(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.
In enacting Section 7, Congress sought 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. See S.Rep.No. 1183, 93rd Cong., 2d Sess. reprinted in (1974) U.S.Code Cong. & Ad.News 6916, 6944. Underlying this legislative effort was the recognition that widespread use of a standard identification number in collecting information could lead to the establishment of a national data bank or similar informational system, which could store data gathered about individuals from many sources and facilitate government surveillance of its citizens. Id. at 6944-45, 6957. It was anticipated that as use of the social security number proliferated, the incentive to consolidate records and to broaden access to them by other agencies of government would in all likelihood correspondingly increase. Id. at 6945. Thus, Congress saw a need for federal legislation to restore to the individual the option to refuse to disclose his social security number without repercussion, except in the specifically delineated circumstances outlined in section 7(a)(2).
The 1976 amendment to the Social Security Act, adopted after the passage of the Privacy Act, furnishes an additional exception to the statutory protection generally accorded to those people who refuse to disclose their social security numbers. That amendment states:
(i) It is the policy of the United States that any State (or political subdivision thereof) may, in the administration of any tax, general public assistance, driver's license, or motor vehicle registration law within its jurisdiction, utilize the social security account numbers issued by the Secretary for the purpose of establishing the identification of individuals affected by such law, and may require any individual who is or appears to be so affected to furnish to such State (or political subdivision thereof) or any agency thereof having administrative responsibility for the law involved, the social security account number (or numbers, if he has more than one such number) issued to him by the Secretary.
(iii) For purposes of clause (i) of this subparagraph, an agency of a State (or political subdivision thereof) charged with the administration of any general public assistance, driver's license, or motor vehicle registration law which did not use the social security account number for identification under a law or regulation adopted before January 1, 1975, may require an individual to disclose his or her social security number to such agency solely for the purpose of administering the laws referred to in clause (i) above ....
42 U.S.C. § 405(c)(2)(C)(i) and (iii) (emphasis added).
Drawing from the language of section 7 and section 405(c)(2)(C), the Court concludes that the State Treasurer's practice of requiring the disclosure of social security numbers, for the purpose of securing a refund of a motor vehicle fine, could pass muster only if the following elements were proved. First, the practice of mandatory disclosure must fall within either of the two pertinent statutory exceptions described above: (1) it must be incident to the administration of a state driver's license or motor vehicle registration law under 42 U.S.C. § 405; or (2) disclosure of the social security number on refund vouchers must be required under a statute or regulation adopted prior to January 1, 1975, under a system of records in existence and operating before that date pursuant to section 7(a)(2) of the Privacy Act. Second, besides proving either of these two elements, the State Treasurer would have the additional burden of demonstrating compliance with section 7(b) of the Privacy Act, ...