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Indiana slams records shut in surprise move

FOI Alert Volume 2 Issue 12

The Indiana Bureau of Motor Vehicles has closed more than 5 million driver's license records that have been open to the public for decades.

The decision was made by Commissioner Gary Gibson with approval from Gov. Frank O'Bannon's legal counsel.

Closing the records came as a surprise to public access advocates who lobbied last year for legislation that would have allowed consumers to make that choice individually.

The federal Driver's Privacy Protection Act passed by Congress in 1994 is forcing states to either close personal information on records or let drivers make that choice through "opt-out" laws.

If states fail to past opt-out laws, the records will automatically close this September by federal mandate.

The federal law has created a crazy patchwork quilt of laws across the country according to the Association of Motor Vehicle Administrators in Arlington, Va.

"It's just a mixed bag as to what each state is doing," said Linda Lewis, legislative affairs director for the association. "It's just all over the board."

Information that is prohibited from disclosure under federal law includes an individual's social security number, driver identification number, address and telephone number.

Even though other information on public safety is disclosable -- such as a driver's history of violations or status -- it becomes impossible to check that record should a person have a common name.

A dozen or more groups lobbied successfully for exemptions to the federal law -- and can continue to receive the data -- including telemarketers, tow truck drivers and private investigators.

Press groups did not seek an exemption in the federal law.

In other states:

South Carolina has filed a constitutional challenge to the federal law based on 10th Amendment grounds. Press groups have joined in a brief arguing First Amendment issues.

Other legal experts are predicting a recent U.S. Supreme Court decision on the Brady gun-control law gives states good cause to challenge the federal privacy provision.

Justice Antonin Scalia said the federal government could not restrict states to administer or enforce a federal regulatory program because "such commands are fundamentally incompatible with our constitutional system of dual sovereignty."

The 5-4 decision invalidated the background check provision of the 1993 law which had been challenged by county sheriffs from Montana and Arizona.

Minnesota passed an opt-out allowing drivers to choose confidentiality by checking a state form. That process began Aug. 1 last year. To date, about 432,774 out of 3.5 million drivers have chosen confidentiality.

In Minnesota, drivers are given three options.

They can elect not to allow individual inquiries made on their records.
They can elect not to have personal information given out for solicitation purposes.
Or they can pick both options.
Most are picking both, state officials said.

The media has an exemption, but only for some data.

"They can see my driving record but they can't run my plate number," said Carl Peaslee, manager of records and information management for the State Department of Public Safety.

Peaslee said regular attempts have been made over the past 10 to 15 years to restrict this historically public data, but those usually doesn't sell in the legislature.

"There's been too many arguments against it," Peaslee said.

The state had previously implemented an anti-stalking measure allowing individuals to provide the state with alternative mailing addresses but Peaslee said only about 1,000 people had done so.

Indiana officials understated the case of record closure in a report filed by the Associated Press. Instead, BMV officials claimed that press groups such as SPJ were overreacting.

Bureau officials said they decided not to implement individual opt-out for cost reasons.

"We would have spent hundreds of thousands of dollars in notification alone," Spokesman Alvin Hayes told the AP. "... That would mean not only every driver, but every vehicle owner as well."

There is still plenty of confusion about the federal law and state solutions. For additional background information, please review the FOIA section of SPJ's Web site.

In other sunshine news ...

The Society welcomes two new state volunteers to its Project Sunshine network.

Carolyn James is publisher and managing editor of The Amityville Record in Massapequa Park, N.Y. James can be reached at 516-798-5100.

Alice Jackson Baughn is a reporter for The Sun Herald in Ocean Springs, Miss. Baughn can be reached at 601-875-2777.

Project Sunshine is a program initiated by SPJ in 1990 to focus attention and energy on problems of steadily-eroding access to national, state and local government.

These state-based volunteers provide the backbone of the Society's Freedom of Information Committee and often alert us to trends that sweep the nation.

For a current list of all state sunshine chairs, check SPJ's website.

Vacancies currently exist in Pennsylvania, Connecticut, New Jersey and Idaho.

If you are interested in serving in this volunteer FOIA network, contact SPJ at 317/927-8000; spj@spj.org.

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