Public bodies take note, new case holds newspaper may have violated law by publishing personal information obtained from driving records
Newspapers often pursue legal and administrative remedies against public bodies, alleging failure to properly disclose information in response to a Freedom of Information Act (“FOIA”) request. The tables were turned in Dahlstrom v. Sun-Times Media, LLC, 2015 WL 481097, a case decided by the 7th Circuit Court of Appeals in February, 2015. In Dahlstrom, five police officers sued the Chicago Sun-Times for its disclosure of personal information that it obtained from the officers’ driver’s records.
Dahlstrom v. Sun-Times Media
This case is instructive for public bodies attempting to comply with FOIA while avoiding liability for disclosing certain information. Dahlstrom arises from the Sun-Times’ reporting on the Chicago Police Department’s (“CPD”) murder investigation of the nephew of then-Mayor Richard M. Daley. The Sun-Times questioned the legitimacy of a lineup featuring the nephew and five CPD officers in an article titled: “Daley Nephew Biggest Guy on Scene, But Not in Lineup.” The Sun-Times published photographs of the lineup and the officers’ names, both of which were obtained from the CPD. Problematically, the Sun-Times also published information it received from the Secretary of State, including: the months and years of the officers’ births, their heights, weights, hair colors, and eye colors.
The Driver’s Privacy Protection Act (the “DPPA”), 18 U.S.C. 2721, prohibits any person from knowingly obtaining or disclosing personal information from a motor vehicle record. The Act defines “personal information” as “information that identifies an individual, including an individual’s photograph, social security number, driver identification number, name, address (but not the 5-digit zip code), telephone number, and medical or disability information, but does not include information on vehicular accidents, driving violations, and driver’s status.”
The Sun-Times claimed the information it published from the Secretary of State was not “personal information,” and, even if it were, the DPPA violates the First Amendment by preventing the press from reporting the news. The Seventh Circuit rejected both of the Sun-Times’ arguments.
First, it held that the information at issue was “personal information” under the DPPA. The Court noted that, prior to enactment of the DPPA, virtually anyone could get motor vehicle records for any driver, from almost any state and for any reason, and that the purpose of the DPPA was to protect personal information from being so readily disclosed. The Court also recognized that the DPPA was meant to prevent some states from continuing a practice of selling drivers’ personal information to businesses engaged in direct marketing and solicitation.
Second, the Court held that the DPPA does not unconstitutionally restrict First Amendment rights to speech and the press. Instead, it provides a valid, content-neutral restriction imposed on a rational basis.
Based on these holdings, the Court upheld the denial of the Sun-Times’ motion to dismiss, and ordered the officers’ suit to continue.
FOIA Responses After Dahlstrom
While FOIA permits a public body to redact certain exempt information from public records before it produces them in response to a request, FOIA does not typically require redaction. For example, Section 7 of FOIA allows a municipality to redact private and personal information from a FOIA response. Section 7.5 allows redaction of “[l]aw enforcement officer identification information or driver identification information compiled by a law enforcement agency or the Department of Transportation under Section 11-212 of the Illinois Vehicle Code” and “[p]ersonally identifiable information which is exempted from disclosure under subsection (g) of Section 19.1 of the Toll Highway Act.” Of course, FOIA also has a catch-all exemption that permits redaction of information “specifically prohibited from disclosure by federal or State law or rules and regulations implementing federal or State law.” However, none of these require the relevant information be redacted.
Dahlstrom demonstrates that disclosure of personal information obtained from drivers’ and motor vehicle records may subject a public body to liability under the DPPA. To avoid liability, public bodies must redact this type of information from their FOIA responses.
Readers may also be interested to know that the Seventh Circuit included a footnote that told the rest of the underlying story in Dahlstrom. The Cook County Circuit Court appointed a special prosecutor to investigate the matter. Daley’s nephew was subsequently indicted and charged with involuntary manslaughter, to which he pled guilty in January 2014.
In conclusion, regardless of how a public body obtains personal information from driver and motor vehicle records, the body must redact such information before producing documents in a FOIA response. If you ever question whether certain information can be obtained or should be disclosed without violating FOIA or the DPPA, please consult your attorney.