HB 713-FN – AS AMENDED BY THE HOUSE
04Jan2006… 0097h
2005 SESSION
08/03
HOUSE BILL 713-FN
AN ACT relative to a process for the request and disclosure of social security numbers.
SPONSORS: Rep. Patten, Carr 4; Rep. Kurk, Hills 7
This bill:
I. Establishes a process for the request and disclosure of social security numbers by governmental entities.
II. Prohibits, with certain limited exceptions, a person from filing with the registry of deeds a document that includes an individual’s social security number.
III. Authorizes private actions for unauthorized use of a social security number.
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Explanation: Matter added to current law appears in bold italics.
Matter removed from current law appears [in brackets and struckthrough.]
Matter which is either (a) all new or (b) repealed and reenacted appears in regular type.
04Jan2006… 0097h
05-0623
08/03
STATE OF NEW HAMPSHIRE
In the Year of Our Lord Two Thousand Five
AN ACT relative to a process for the request and disclosure of social security numbers.
Be it Enacted by the Senate and House of Representatives in General Court convened:
1 New Chapter; Disclosure of Records. Amend RSA by inserting after chapter 275-E the following new chapter:
CHAPTER 275-F
DISCLOSURE OF SOCIAL SECURITY NUMBERS
275-F:1 Definition. In this chapter “governmental entity” means the state or any political subdivision of the state, a government branch, unit, or agency, including any authority, board, court, department, division, commission, institution, bureau, or similar entity of the state or of any political subdivision of the state, or any contractor to any of the foregoing. “Governmental entity” does not include county registries of deeds to the extent they are regulated under RSA 478:4-b.
275-F:2 Disclosure of Social Security Numbers.
I. It shall be unlawful for any governmental entity to obtain an individual’s social security number from a source other than the individual to whom it is assigned, or to disclose an individual’s social security number, unless the governmental entity is required by federal law or state statute to do so.
II. It shall be unlawful for any governmental entity to request an individual to disclose his or her social security number on a voluntary basis unless such request is explicitly authorized by state statute.
III. It shall be unlawful for any governmental entity to deny to any individual any right, benefit, or privilege provided by law because of such individual’s refusal to disclose his or her social security number, except for:
(a) Any disclosure which is required by federal law or by state statute as authorized by federal statute; or
(b) Any disclosure of a social security number to a governmental entity maintaining a system of records in existence and operating before January 1, 1975, if such disclosure was required under federal or state statute or regulation enacted or adopted prior to January 1, 1975, to verify the identity of an individual.
IV. Any governmental entity which requests or requires an individual to disclose his or her social security number shall inform that individual in writing whether such disclosure is mandatory or voluntary, by what statutory or other authority such number is solicited, and what uses will be made of it.
275-F:3 Civil Penalties. In any suit brought to enforce the provisions of RSA 275-F:2 in which the court determines that the governmental entity or an employee of the governmental entity acted in a manner which was intentional or willful, the aggrieved individual may bring against the governmental entity an action to enjoin such violation and, if successful, recover court costs and reasonable attorney’s fees.
275-F:4 Criminal Penalties.
I. Any officer or employee of a governmental entity who, by virtue of his or her employment or official position, has possession of, or access to, records of the governmental entity which contain social security numbers the disclosure of which is prohibited by this chapter, and who, knowing that disclosure of the social security number is prohibited, willfully discloses the social security number in any manner to any person or governmental entity not entitled to receive it, shall be guilty of a misdemeanor and fined not more than $1,000.
II. Any person who knowingly and willfully requests or obtains any social security number from a governmental entity under false pretenses shall be guilty of a misdemeanor and fined not more than $1,000.
2 New Sections; Registers of Deeds; Social Security Numbers and Financial Information. Amend RSA 478 by inserting after section 4-a the following new sections:
478:4-b Records; Social Security Numbers and Financial Information.
I. The preparer of a document shall not include an individual’s social security number, credit card number, or deposit account numbers in a document that is prepared and presented for recording in the office of the register of deeds. This paragraph shall not apply to state or federal tax liens, certified copies of death certificates, and other documents required by law to contain such information that are filed or recorded in the office of the register of deeds. For the purpose of this section, “preparer” shall mean the person who drafts the documents that are recorded with the register of deeds. Preparer shall not include any person who hires, requires, refers, pays, or requests that the documents be drafted or recorded.
II. If a deed or instrument that includes an individual’s social security number, credit card number, or deposit account numbers, was filed with the register of deeds and is available on the Internet, the individual may request that the register of deeds redact such information from the Internet record. The register of deeds shall establish a procedure by which individuals may request that such information be redacted from its files which are available on the Internet. Upon request, the information shall be redacted.
III. The register of deeds shall comply with an individual’s request to redact his or her social security number, credit card number, or deposit account numbers within 5 business days of the receipt of the request, or sooner, if ordered to do so by a court, for good cause shown.
478:4-c Violation; Enforcement. An individual aggrieved by a violation of RSA 478:4-b, I may bring against the preparer:
I. An action to enjoin such violation.
II. An action to recover actual monetary loss from such a violation, or to receive up to $1,000 in damages for each such violation, whichever is greater.
III. Both such actions.
3 New Chapter; Action for Unauthorized Use of Social Security Number. Amend RSA by inserting after chapter 507-G the following new chapter:
CHAPTER 507-H
ACTION FOR UNAUTHORIZED USE OF SOCIAL SECURITY NUMBER
507-H:1 Prohibition. No person may do any of the following:
I. Intentionally communicate or otherwise make available to the general public an individual’s social security number or any part thereof.
II. Require an individual to use his or her social security number to access an Internet site unless it is encrypted or otherwise comparably secure.
III. Give, sell, lease, loan, trade, rent, or otherwise disclose an individual’s social security number to a third party for any purpose without written consent by the individual to the disclosure.
IV. Treat an individual differently or refuse to do business with an individual because the individual will not provide, or consent to the receipt by such person of, the social security number of such individual.
507-H:2 Exceptions. This chapter shall not prevent:
I. The collection, use, or release of a social security number as required by state or federal law or by state or federal officials in order to carry out their official functions.
II. The use of a social security number by a person, or a contractor or affiliate of that person, to verify the identify of an individual or for administrative purposes, as long as the number was acquired for an allowable purpose.
III. The collection, use, release, or sharing of a social security number to obtain a credit report from or furnish data to a consumer reporting agency pursuant to the New Hampshire Fair Credit Reporting Act, RSA 359-B, or the Fair Credit Reporting Act, 15 U.S.C. section 1681, et seq.
IV. The collection, use, release, or sharing of a social security number in connection with providing a credit report or file, a consumer report, or consumer disclosure as permitted or required by the New Hampshire Fair Credit Reporting Act, RSA 359-B:1, or to undertake a permissible purpose enumerated in Title V of the Gramm-Leach-Bliley Act, 15 U.S.C. sections 6801 through 6809.
507-H:3 Violation; Actions.
I. An individual aggrieved by a violation of this chapter may bring:
(a) An action to enjoin such violation.
(b) An action to recover actual monetary loss from such a violation, or to receive up to $1000 in damages for each such violation, whichever is greater.
(c) Both such actions.
II. In any successful action under paragraph I, the aggrieved party shall be awarded the costs of the action together with reasonable attorney’s fees as determined by the court. Upon a finding by the court that an unsuccessful pleading, motion, or paper filed in connection with an action under paragraph I was filed in bad faith or for purposes of harassment, the court shall award to the prevailing party attorney’s fees reasonable in relation to the work expended in responding to the pleading, motion, or other paper.
III. It shall be an affirmative defense in any action brought under paragraph I that the defendant has established and implemented, with due care, reasonable practices and procedures to effectively prevent violations of this chapter.
IV. If the court finds that the defendant willfully or knowingly or with gross negligence violated this chapter, the court may, in its discretion, increase damages to an amount equal to not more than 3 times the amount available under paragraph I.
4 Effective Date.
I. RSA 478:4-b, III as inserted by section 2 of this act of this act shall take effect March 1, 2007.
II. The remainder of this act shall take effect January 1, 2007.
LBAO
05-0623
Revised 2/2/05
HB 713 FISCAL NOTE
AN ACT relative to a process for the request and disclosure of social security numbers.
FISCAL IMPACT:
The Department of Administrative Services, Judicial Branch, Judicial Council, New Hampshire Municipal Association, and Association of Counties state this bill may increase state, county, and local expenditures by an indeterminable amount in FY 2006 and each year thereafter. The Association of Counties states this bill may have an indeterminable fiscal impact on county revenues in FY 2006 and each year thereafter. There will be no fiscal impact on state and local revenues.
METHODOLOGY:
The Department of Administrative Services states there is no existing inventory of information regarding the collection and use of social security numbers of employees and persons coming into contact with agencies. Although the State uses social security numbers as primary employee tracking numbers in the state’s accounting system, alternate numbers can be established and may be used in cases where an individual either lacks a social security number or refuses to supply one. The current use of social security numbers will change when the state updates its software systems. However, it is not likely this process will be completed prior to the January 1, 2006 effective date of this bill. Since federal forms that require disclosure of an individual’s social security number must identify the legal basis of the requirement, this section of the bill is not likely to result in a fiscal impact. There is likely to be a fiscal impact associated with the provisions of this bill which require a written request or written consent prior to disclosing social security number information. Under this bill, when an employee transfers from one agency to another, the transferring agency will have to process a written request or obtain consent prior to transferring a personnel file that contains the employee’s social security number. Assuming that the disclosure was required simply in order to allow the receiving agency to process payroll for the individual in compliance with IRS requirements, consent might not be required and there would be no added cost. However, the same issues would surface when the agency had to disclose information regarding social security numbers in connection with the state’s accounting system tracking, health benefits, and state audits. In these scenarios, federal statute requiring disclosure may not exist, but the information would have to be provided for tracking purposes. To avoid violating the statute, new systems would have to be put in place by the agencies. If violations occurred, civil and criminal penalties set forth in this bill may occur, as well as attorney’s fees. In regards to other provisions of this bill, since the State will not have to prepare a payroll for the employees of a contractor doing business with the state, the state will probably have no permissible statutory basis to obtain social security numbers of a contractor’s employees. This could be a problem in safety sensitive situations, such as state building projects, where the state wishes to run criminal background checks on employees who are working for a contractor. It would be helpful to have a social security number in these cases, yet unless required by federal law, the State would not be able to obtain them. This also raises concern about employees of consultants with access to confidential information. The Department states the exact fiscal impact cannot be determined at this time.
The Judicial Branch states this bill would establish a new RSA chapter 275-F, regarding disclosure of social security numbers. The proposed law allows individuals to refuse to disclose to government their social security number except in limited circumstances. It also prohibits government from disclosing social security numbers in its possession except on request of the individual, or with the individual’s consent, or in limited circumstances. There are both civil and criminal penalties in this bill. On the civil side, intentional or willful disclosure in violation of the chapter can result in actual damages or $1,000, whichever is greater, and costs and attorney’s fees. On the criminal side, knowing and willful disclosure or requesting or obtaining a social security number under false pretense is an unspecified misdemeanor punishable by a fine of not more than $1,000. Since both the civil and criminal penalties involve intentional or willful conduct, the Branch states any fiscal impact should be minimal. The Branch states they have many public files which contain social security numbers. Court files contain whatever documents the parties file, which sometimes contain social security numbers. With very limited exceptions, all court files are public. If this bill were construed to allow civil or criminal penalties, as a result of judicial branch employees allowing members of the public to view a file which contained a social security number, the fiscal impact of this bill could be substantial. The time spent on file review for social security numbers, and the potential of civil damages being paid by the state as a result of a member of the public being allowed to see a judicial branch file which contained a social security number could also result in an indeterminable fiscal impact to the Branch.
The Judicial Council assumes that any cases arising from the enactment of this bill for which the Indigent Defense Fund may be liable will, in the first instance, be handled by the public defender or a contract attorney who accepts these cases on a fixed fee basis of $250 per misdemeanor charged. If an assigned counsel attorney must be used, the hourly rate of $60 with a fee cap of $1,000 will apply. If a motion to exceed the fee cap is approved and/or “services other than counsel” are approved, these will also be chargeable to the Indigent Defense Fund. Any charge within the criminal justice system, committed by a juvenile, will be compensated within the flat fee contract system of $250 per case through disposition, plus $187.50 for each and every review hearing following disposition. Any case where a defendant has been found guilty may also result in appeals to either the Superior Court or to the Supreme Court which would have a cost implication for Indigent Defense expenditures made by the State. The Council is unable to predict the number of cases which may result from the passage of this bill, and are unable to determine the exact fiscal impact at this time.
The New Hampshire Municipal Association states this bill would regulate the disclosure of social security numbers to state and local governmental agencies, and provides penalties, both civil and criminal, for improper disclosure of social security numbers. There are now few, if any, limitations on when a municipality can request a social security number, but this legislation would allow it only when required by federal law or by statute enacted prior to 1975. This bill would require that even in situations where it is mandatory for a person to disclose their social security number, the municipality must “inform the person in writing whether such disclosure is mandatory or voluntary, by what statutory or other authority such number is solicited, and what uses will be made of it.” This requirement would increase local expenditures by an indeterminable amount, and may also result in the need to establish an additional administrative function at the local level to keep track of social security number information required by this bill. In addition, this bill subjects municipalities to new causes of action for the improper disclosure of social security numbers by either employees or agents of the municipality which could also increase local expenditures by an indeterminable amount.
The Association of Counties states section 1 of this bill raises questions regarding the ability of county correctional institutions collecting and reporting social security numbers of inmates during the intake process at the facilities. Federal law prevents certain social security and certain other federal entitlements to be extended to incarcerated individuals. There are revenues associated with the reporting process used at the county department of corrections, as the social security administration pays the facility a fee of $400 per individual identified as falling into the programs guidelines. The exact fiscal impact cannot be determined at this time. This bill also creates a new misdemeanor. To the extent individuals are prosecuted, the county may incur the cost of pre-trial detainment at the county department of corrections, as well as the cost of sentenced inmates under the new law. The average annual cost for counties to incarcerate inmates is $21,633.55. The Association states the total exposure to the counties would be dependent on the number of individuals convicted and sentenced under the new law, which cannot be determined at this time.
The Department of Justice states this bill will have no fiscal impact on their department.