796 NYS2d 848 | N.Y. Sup. Ct. | 2005
This motion poses a question of nationwide first impression as to whether, as between two private citizens or entities and where no statute or governmental regulation requires disclosure, a state consumer protection statute may be utilized to assert a claim that a Social Security number be protected from disclosure as confidential information. In the face of a motion to dismiss by entities which insist on their right to demand plaintiff’s Social Security number, this question must be answered in favor of permitting the claim for protection to proceed.
Because the confidentiality of a Social Security number has been the subject of sharply different legal analyses, no single legal theory has emerged from prior judicial decisions considering this subject in various different fact patterns. For reasons explained below, in relation to a private transaction, this court may well adopt a bright line standard that a Social Security number is prima facie privileged information, with the privilege to be asserted only after the demanding party demonstrates entitlement to confidential information. While the privilege must give way as required by statute, regulation or court order, in ordinary circumstances, the person who holds the Social Security number appears to be free to decline disclosure.
This legal issue is posed by the straightforward facts present here. Petitioner’s landlord and its agents have demanded that she reveal her Social Security number as she completes a form regarding the number of occupants of her apartment. A local law permits the landlord to inquire about apartment occupants, but does not authorize a demand for Social Security numbers (Administrative Code of City of NY § 27-2075 [c]). For reasons not relevant here, the landlord is not currently in possession of petitioner’s Social Security number. Additional facts are added in the second section of this decision addressing the applicability of state consumer protection laws.
Plaintiffs complaint seeks declaratory relief (CPLR 3017 [b]), as well as injunctive and monetary relief under the New York consumer protection statute, General Business Law § 349 (h). The defendants’ motion seeks dismissal of the complaint (CPLR 3211 [a] [1], [7]). Both parties request an award of costs, sanctions and attorneys’ fees (22 NYCRR 130-1.1).
Plaintiff fears disclosure of her Social Security number (SSN) may make her subject to identity theft, which has been a peril
Social Security Numbers: A Legal Background
Social Security numbers were first adopted in 1936, when nine-digit account numbers were assigned to persons by the Secretary of Health and Human Services for the purpose of administering the Social Security laws (42 USC § 405 [c] [2] [B]). Federal law provides that Social Security account numbers and related records that are obtained or maintained by “authorized persons” shall be confidential, and no “authorized person” shall disclose any such Social Security account number or related record (42 USC § 405 [c] [2] [C] [viii] [I]).
It is beyond doubt that governmental officials of every stripe may demand disclosure of a Social Security number, subject to certain restrictions. The primary limitation is contained in the
There is a broad federal policy against the government revealing individuals’ Social Security numbers. There are a variety of federal statutory restrictions on dissemination of such information, such as the federal Driver’s Privacy Protection Act of 1994 (18 USC §§ 2721-2725; see Reno v Condon, 528 US 141, 151 [2000] [act restricting states’ ability to sell private data, which included Social Security numbers on driver license applications, was proper governmental exercise because it “regulates the States as the owners of data bases” being sold in interstate commerce]).
The foregoing authorities reflect a broad recognition of the confidential nature of a Social Security number. This result is not inconsistent generally with common-law view of private information, described in United States Dept. of Justice v Reporters Comm. for Freedom of Press (489 US 749, 763-764 [1989]), a case involving the confidentiality of individual criminal history records, as follows:
“To begin with, both the common law and the literal understandings of privacy encompass the*916 individual’s control of information concerning his or her person. In an organized society, there are few facts that are not at one time or another divulged to another . . . According to Webster’s initial definition, information may be classified as ‘private’ if it is ‘intended for or restricted to the use of a particular person or group or class of persons: not freely available to the public.’ ”
As the Supreme Court concluded, the fact that the information resides in a governmental or other scattered record does not automatically defeat a privacy claim.
The Supreme Court also addressed the privacy tort theories which have achieved recognition in many jurisdictions:
“[A right to control private information was first enunciated in] Warren & Brandéis, The Right to Privacy, 4 Harv. L. Rev. 193, 198 (1890-1891) (‘The common law secures to each individual the right of determining, ordinarily, to what extent his thoughts, sentiments, and emotions shall be communicated to others . . . [E]ven if he has chosen to give them expression, he generally retains the power to fix the limits of the publicity which shall be given them’). The common law recognized that one did not necessarily forfeit a privacy interest in matters made part of the public record, albeit the privacy interest was diminished and another who obtained the facts from the public record might be privileged to publish it. See . . . Restatement (Second) of Torts § 652D, pp. 385-386 (1977) (‘[T]here is no liability for giving publicity to facts about the plaintiff’s life that are matters of public record, such as the date of his birth . . . On the other hand, if the record is one not open to public inspection, as in the case of income tax returns, it is not public and there is an invasion of privacy when it is made so’); W. Keeton, D. Dobbs, R. Keeton, & D. Owens, Prosser & Keeton on Law of Torts § 117, p. 859 (5th ed. 1984) (‘[M]erely because [a fact] can be found in a public recor[d] does not mean that it should receive widespread publicity if it does not involve a matter of public concern’).” (489 US at 763 n 15.)5
Concluding this broad review of the treatment of Social Security numbers, it is clear that the weight of authority favors treating a Social Security number as private and confidential information. In casting for a proper legal characterization, the law appears to support a conclusion that a Social Security number is protected by something akin to a privilege against disclosure, which privilege is to be asserted only after legal authority for the demand is demonstrated.
Consumer Protection Statutory Claim
Plaintiff seeks relief upon the claim that her landlord’s request for her Social Security number constitutes a violation of New York’s consumer protection statute (General Business Law § 349 [h]), upon the allegation that her landlord deceptively represented that she was required by law to provide personal and confidential information, including her birth date and Social Security number, in order to secure a renewal lease and to avoid eviction. A prima facie case of deceptive practices pursuant to General Business Law § 349 requires a showing that defendants’ acts are directed to consumers, that they are deceptive or misleading in a material way and that plaintiff has been injured thereby (Zurakov v Register.Com, Inc., 304 AD2d 176 [1st Dept
To elaborate upon the facts, in September of 2003, the landlord sent a renewal lease with a letter directing her to complete and execute a form which required such information in relation to each occupant of plaintiffs apartment. The form stated it was “[i]n accordance with New York City Administrative Code, Section 27-2075 (c)” and that “[failure to reply is grounds for eviction.” The included “Lease Renewal Instructions” stated that all enclosed forms “must be signed if you would like to renew your lease for your apartment. You must completely sign and enter all information requested.” Plaintiff alleges that the landlord routinely sends the same forms to all rent-regulated tenants in the buildings it owns or manages.
Upon receiving the lease renewal packet, plaintiff sought legal advice as to whether she was required to complete the affidavit and provide all information demanded. The landlord refused to withdraw the demand for information.
The landlord baldly asserts that it is entitled to demand disclosure of the plaintiffs Social Security number, urging such demand is specifically authorized by applicable laws. Landlord relies on Administrative Code § 27-2075 (c), which relates to maximum permitted occupancy of an apartment. The provision states, in relevant part, that “[o]n written demand ... by the owner when he or she rents a dwelling unit or any time thereafter, the tenant shall submit an affidavit setting forth the names and relationship of all occupants residing within the dwelling unit and the ages of any minors.” By its plain language, the code provision relied upon by defendants does not authorize a demand for Social Security numbers of apartment occupants, or for the birth dates of all adult occupants.
Further, to the extent landlord’s forms could be understood as threatening eviction for noncompliance, such threat must also be viewed as inaccurate since courts have held that a tenant cannot be evicted for noncompliance with section 27-2075 of the Administrative Code (Tabak v Pinzon, NYLJ, Mar. 18, 1999, at 30, col 4 [Civ Ct, NY County] [“mere non-response to a Demand Notice alone is an insufficient basis to evict a rent controlled tenant”]; 338 W. 17th St. Assoc. v Katehis, NYLJ, Oct. 5, 1994, at 22, col 2 [Civ Ct, NY County] [noting that “Housing Maintenance Code was enacted to protect tenants from substandard tenements and housing conditions which were clearly a threat to the very lives and health of the occupants,” and
Nor do defendants advance any other showing of a right to obtain Social Security numbers of occupants of the apartments. This unit is not one in which the tenant receives governmental benefits (see, e.g., Matter of Waterside Redevelopment Co. v Department of Hous. Preserv. & Dev., 270 AD2d 87 [1st Dept 2000] [income inquiry for tenants of City-Aided Limited Profit Housing Companies under article 2 of the Private Housing Finance Law], lv denied 95 NY2d 765 [2000]). The landlord has not initiated a luxury decontrol inquiry under the Rent Stabilization Law, which would not entitle it to Social Security information in any event (Administrative Code § 26-504.1; Matter of Shapiro v New York State Div. of Hous. & Community Renewal, NYLJ, Apr. 8, 1998, at 28, col 4 [Sup Ct, NY County, Tolub, J.] [“As the tax department advised the Governor in his July 7, 1993 letter, The Tax Law prohibits use of tax return information for nontax purposes’ and ‘(u)nder federal law, social security numbers cannot be used for the purpose of denying rent control to high-income tenants through the matching program envisioned by the bill’ (Commissioner’s letter in Governor’s Bill Jacket, Laws of 1993, Chapter 253)”], affd 262 AD2d 18 [1st Dept 1999], affd as mod, sub nom. Matter of Elkin v Roldan, 94 NY2d 853 [1999]), which means verification is by name and address only. It can also be noted that this same confidential treatment of Social Security numbers is respected in the course of summary landlord-tenant proceedings (see Cambridge Dev., LLC v McCarthy, 2003 NY Slip Op 51433[U] [Civ Ct, NY County 2003, Lebovits, J.] [permitting tenant to redact Social Security numbers from documents produced in non-primary-residence summary proceedings]).
Accordingly, there is no legal support for the form’s instructions that tenants “must” complete the affidavit or to the claim the defendants’ demands were authorized by law. Because a “deceptive act or practice” under the consumer protection statute is a representation or omission “likely to mislead a reason
Defendants then maintain that plaintiff has not shown injury, which is required by General Business Law § 349 (h), which permits “any person . . . injured by reason of any violation” of the statute to bring an action to enjoin the unlawful act or practice and/or an action to recover actual damages or $50. Defendants argue plaintiff alleges no actual damages, other than anxiety and distress, as well as prelitigation attorney’s fees which appear to be an item of pecuniary damage separate and apart from the costs of litigation. The court determines the pleading is proper in form and sufficient under the statute. As stated in relation to another consumer fraud claim, Goshen v Mutual Life Ins. Co. of N.Y. (98 NY2d 314, 326 [2002]), on this motion to dismiss, “the pleadings are necessarily afforded a liberal construction” and a plaintiff accorded “the benefit of every possible favorable inference.” Accordingly, this branch of the motion is denied with leave to renew after amplification of the pleading or discovery. .
Further, it cannot be doubted that a privacy invasion claim— and an accompanying request for attorney’s fees — may be stated under General Business Law § 349 based on nonpecuniary injury, such as deprivation of the right to maintain the privacy of medical records (see Anonymous v CVS Corp., 188 Misc 2d 616 [Sup Ct, NY County 2001], grant of class certification affd 293 AD2d 285 [1st Dept 2002]; see also Remsburg v Docusearch, Inc., 149 NH 148, 816 A2d 1001 [2003] [under New Hampshire consumer fraud statute, invasion of privacy claim against investigator was proper]). Declaratory relief may well be appropriate for a case such as this one, which presents an instance of an actual and justiciable case or controversy, affecting the rights of the parties on both sides (see 43 NY Jur 2d, Declaratory Judgments and Agreed Case § 18; Bartley v Walentas, 78 AD2d 310, 312 [1st Dept 1980] [purpose of declaratory action “is to serve a practical end ‘in quieting or stabilizing an uncertain or disputed jural relation either as to present or prospective obligations’ ”]; see also Martinez v Classic Realty LLC, NYLJ, May 21, 2003, at 18, col 1 [Sup Ct, NY County, AbdusSalaam, J.] [landlord demand similar to that in instant case withdrawn, tenant’s claim for declaratory relief could proceed]).
The belated objection that plaintiff lacks a proper claim under General Business Law § 349 because the defendants’ activity
Accordingly, the motion to dismiss is denied.
Conclusion
Given that this debate raises an issue of first impression, the requests for sanctions raised by both parties are denied.
Defendants’ motion to dismiss is denied. As to defendant Greystar, such denial is without prejudice to renewal following discovery.
. The term “authorized person” means an officer or employee of any political subdivision of a state, or agency of a political subdivision of a state, and any other person, officer or employee thereof, who has or had access to Social Security account numbers or related records, as defined by 42 USC § 405 (c) (2) (C) (viii) (III).
. The Privacy Act also provides “[i]t 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 [the individual’s] social security account number” (Pub L 93-579, § 7, 88 Stat 1909; see McKay v Altobello, 1997 WL 266717, 1997 US Dist LEXIS 7162 [ED La, May 16, 1997] [voter registration denial after refusal to provide mother’s maiden name and Social Security number determined to violate section 7 of the Privacy Act]).
. In Arakawa v Sakata (133 F Supp 2d 1223, 1229-1230 [D Haw 2001]), the court reviewed the lower court decisions preceding the 2000 decision in Reno v Condon (supra), and the few scattered decisions finding Social Security numbers were not confidential in the face of certain governmental interests. The court concluded “that there is a constitutional right to privacy in the in
. There are rare cases in which the government determines that disclosure is appropriate and such situations must be justified by a clear government interest which prevails in a balancing test. For example, in In re Crawford (194 F3d 954 [9th Cir 1999], cert denied sub nom. Ferm v United States Trustee, 528 US 1189 [2000]), a lay preparer of bankruptcy petitions objected to a statutory requirement of 11 USC § 110 (c) that he place his identifying Social Security number on court papers. The Ninth Circuit recognized a right of informational privacy in relation to a Social Security number, which was a conditional right to be weighed against the governmental interest (194 F3d at 959). It opined that the threat of identity theft was not an immediate harm, but one remote in time and place and to be undertaken by a nongovernmental actor and that — unlike disclosure of HIV status, sexual orientation, or genetic makeup — a Social Security number “is not inherently sensitive or intimate information, and its disclosure does not lead directly to injury, embarrassment or stigma” (194 F3d at 959-960). It held a sufficient justification for the requirement could be found in the legislative purpose and bankruptcy’s special interest in public access to judicial proceedings (194 F3d at 960).
. In relation to the Restatement standard quoted, tort claims relating to Social Security numbers — notwithstanding that Social Security numbers are found to be private information and confidential — generally are found insuf
. Defendant Greystar-Prime Management seeks dismissal on the grounds that it is not a proper party, based on documentary evidence showing it has no contractual relationship to plaintiff, and is not the owner or manager of the premises (motion, exhibits B, C). Plaintiff responds that dismissal is premature prior to discovery, arguing that Greystar is the entity that issues rent invoice demands, and with which she communicates concerning the apartment. Grey-star’s motion to dismiss is denied at this time.