Conceal-carry may violate a privacy law

We tried to tell them...

May 25, 2004
Cincinnati Post

The Ohio Attorney General's Office is looking into whether it's legal for sheriff's departments to require Social Security numbers from applicants of concealed-weapon permits.

The state was prompted by William J. Miller Sr., an architect from Mount Lookout, who questioned whether it violates a 1974 privacy law.

Ohio's concealed-carry law took effect April 8.

For the government to continue to request Social Security numbers creates "an element of the intentional and the flagrant" disregard for the law on the part of the government, Miller argues.

Miller notes that the privacy law makes illegally seeking a Social Security number a felony.

"But because it's being done by the attorney general and the government, it's being given some kind of pass. I have a little trouble with two-tiered justice -- It's pretty blatant here."

Miller earlier this year wrote to Ohio Attorney General Jim Petro and state Rep. Bill Seitz about the issue. When he got no response, he wrote U.S. Attorney Greg Lockhart, reasoning it was a federal law being violated.

Click on the "Read More..." link below for more.

The section of law in question reads, "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."

The law allows some exceptions, such as to collect taxes and administer driver's license or public assistance programs.

Lawyers from the attorney general and U.S. attorney's office discussed the issue for about an hour by telephone last week, said U.S. Attorney's Office spokesman Fred Alverson.

"We were saying, 'The case law is mixed; have your lawyers look at it,'" Alverson said. "They will at least be looking into it."

A spokeswoman for Petro could not be reached Monday.

The law requires those who apply for permits to show proof they have had 12 hours of safety training, including two hours of shooting practice, within the last three years.

Statewide, about 100,000 people were expected to apply within the first six months after the law was passed.

Permit-seekers must apply at county sheriffs' offices.

Commentary:
One of OFCC's Office of General Counsel attorneys recently stated that "there is a specific exception in the Federal Privacy Act of 1974 (42 USC 405(c)(2)(C)(i)) for a state to use the social security number in 'the administration of any tax, general public assistance, driver's license, or motor vehicle registration law within its jurisdiction.'

There is no exception for other state uses, including Concealed Handgun License applications.

It does appear Ohio is violating federal law by mandating the social security number on CHL applications. To be in compliance, they must make it optional and label it as such, just as the BATFE does on the 4473."

An OFCC supporter recently posted the following to an OhioCCW discussion list:

"We had this issue come up in Virginia. The judge ruled that SSN's cannot be required for CCW permits. The statutory cites and reasoning are in the pleadings, which can be found at http://www.vcdl.org/new/notdisclosed.html."

Tennessee's Attorney General has also weighed in on this question, and cited the Privacy Act in that office's finding that mandating a social security number was not legal.

OFCC has been trying to sound the alarm about this problem since the days of HB274, having noted it in a list of suggested "fixes" for that concealed carry bill, which eventually fell victim to veto threats from Gov. Taft in 2002, and was never passed.

As we suggested then, we suggest again now: the Ohio Attorney General should simply make the provision of the SSN on CHL applications optional, with the understanding that background checks will take longer (but no more than 45 days) if the number is not provided.