DMV records in danger -- again
FOI Alert Volume 4 Issue 6 (1998-99)
Drivers license and motor vehicle registration records are once again a target of federal and state officials advocating privacy rights. A U.S. Senator from Alabama and Minnesota’s attorney general have proposed legislation that would close off basic information in DMV records.
Sen. Richard Shelby, R-Ala., has put language in the Senate Transportation Appropriations bill that would prohibit the distribution of federal transportation funds to any state that discloses personal information from state motor vehicle records. Keeping with Senate tradition on this issue, no hearings were scheduled prior to this legislation being attached to the appropriations bill, according to Robert Lystad, Washington, D.C.-based attorney with SPJ’s legal counsel, Baker and Hostetler.
The move apparently comes after public outcry over some states selling drivers license information to private firms. Lystad says the legislation is similar to the Drivers Privacy Protection Act (sometimes called the "Boxer bill" or "DPPA") that Congress passed in 1994, with some important changes.
-- First, there is no opt-out language of the type that SPJ passively supported (as a last resort) in the DPPA. The opt-out language allowed states to pass legislation that gives residents the right to protect their names in government files and databases. Several SPJ chapters were successful in getting opt-out legislation passed in their states.
-- Second, there are no exemptions except for law enforcement. The DPPA allows private investigators, direct marketers, insurance companies, and the host of others who lobbied so fiercely five years ago access to the records.
--Third, and perhaps most importantly, this legislation likely would pass constitutional muster. Constitutional challenges to the DPPA were successful in South Carolina and Oklahoma, where federal courts held that the statute violated the Tenth Amendment. A third challenge failed in Alabama. The U.S. Supreme Court is now hearing appeals from those cases to make a final decision on the constitutionality of the legislation. Unlike the DPPA, which mandated states to change their open records laws, this legislation would simply withhold federal funds unless they kept drivers’ records private.
The types of personal information that states would be forced to keep sealed are the same as in the DPPA, namely:
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
Shelby’s legislation would not force states to keep private information on vehicular accidents, driving violations, and driver’s status. These are the same exceptions under the DPPA. An effort to include the same legislation in the House Transportation Appropriations bill failed. Assuming the Senate approves the final appropriations bill, differences with the House will have to be worked out in conference.
In Minnesota, Attorney General Mike Hatch plans to propose bills in the coming session of the state legislature to make financial data and driver's license information more private. In addition, Hatch said Sept. 10 he is convening a group of leaders to advise him on privacy issues and make suggestions, which he may or may not follow, according to the Associated Press.
"The right to privacy is huge; people want some semblance of empowerment," Hatch told the AP.
Hatch plans a package of privacy bills for the 2000 legislative session. At a minimum, he plans a bill to protect financial data. He also plans a bill to make driver's license information private, something certain to bring a tough fight from media organizations.
Lucy Dalglish, a Minneapolis lawyer and former chairwoman of SPJ’s Freedom of Information Committee, and several media leaders have scheduled a meeting with Hatch on Sept. 21.
"There are very important public policy reasons why the presumption of openness should be there," Dalglish said.
License information has proven to be a valuable source of information used for simple checks of names and addresses as well as for investigative stories about public safety. The records have been checked for stories about school bus drivers and commercial pilots with drunken driving convictions.
Both in Congress and in Minnesota, SPJ may be again asked to consider a news media exemption to the closure of records. During the earlier DPPA discussion, SPJ did not support a news media exemption, but some state press associations and SPJ chapters have since accepted such language in state laws. SPJ has not taken a position in the current debate and is soliciting opinions from state Sunshine chairs and chapter leaders. The issue will be discussed during the FOI Committee meeting at the national convention in Indianapolis in early October. Along with the internal debate, SPJ Project Sunshine chairs may wish to contact their members of Congress urging them to not support the DMV language.
Here are two opinions, which appeared on the online discussion group FOI-L, from two state sunshine chairs indicative of the debate about a media exemption among SPJ members:
Jim Keat, Maryland Project Sunshine Chair, wrote:
* I side with those who oppose a special press exemption for DMV records. Sunshine laws are for everyone, not just the press. Once we start getting special access, we leaveourselves open to imposition of conditions. My first managing editor would not let his reporters even get press passes issued by the police. They were tantamount to issuing a license to cover a story, he believed. Then there are the practical difficulties in deciding who is a member of the press these days. Again, that leaves the decision open to a government agency. I never tire of pointing out to recalcitrant public officials in Maryland that the complaints to the advisory board that issues opinions on enforcement of the open meetings law gets 90 percent of its complaints from citizens, not the media.
Herb Strentz, Iowa Sunshine Chair, wrote:
* Yes, there should be (and should have been) a press exemption in federal attempts to close down driver's license records; likewise, we need to monitor medical-privacy legislation and rules to make sure such legislation includes a public-interest or news-media-access exemption that will allow hospitals and what are called medical-information trustees to release personally identifiable directory information in times of emergencies, natural disasters or other public-interest situations. There already are countless press exemptions on the books for routine/mechanical things. In Iowa, people delivering newspapers by car have some exemptions from seat-belt laws, for example. It is likely we will be seeing more and more federal action restricting access to records that used to be routinely available at the state and local levels. So, we may as well craft the language for press/public interest exemptions unless we want confidentiality to be the rule and access the exception.