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A state challenge to the Federal Driver's Privacy Protection Act

FOI Alert Volume 2 Issue 7

South Carolina Attorney General Charlie Condon has filed a lawsuit in federal court challenging the Driver's Privacy Protection Act of 1994.

Condon will argue that it is a state's right to decide whether motor vehicle and driver information is public record. The lawsuit claims the federal act is an unconstitutional federal directive.

Media groups have tried to convince officials in many states to bring a lawsuit based on Tenth Amendment grounds.

In a press release, Condon called the federal law "another example of the federal government encroaching on the rights of sovereign states."

South Carolina is the first state to challenge the federal law that goes into effect in September 1997.

The state's press association, and other media groups, have filed a motionto intervene in order to argue First Amendment issues, said Bill Rogers, director of the South Carolina Press Association.

Columbia attorney Jay Bender will be arguing First and Fourteenth Amendment issues.

The motion reads: "The act imposes impermissible burdens on the press, deprives the press of access to records historically available under South Carolina law, imposes punishment for the publication of truthful information and creates exemptions for many users, but fails to do so for the press."

Under current law in South Carolina, anyone who pays a $2 fee and files a written request can receive an individual's history. Anyone using such records for harrassment can be fined $200. The information also cannot be used for soliciting or marketing purposes.

"If what you're after is stalking, stalking is already a crime," said Bender.

Congress passed this dubious law as an anti-stalking measure while granting many groups exemptions, including private detectives and telemarketers who can continue to receive personal information.

By this September, states must keep confidential all personal information unless they pass opt-out laws.

Personal information includes; name, photograph, address, Social Security or driver's identification number, telephone number, and medical or disability information.

Opt-out laws give drivers the choice to keep only their personal information confidential and have been passed in Alaska, Colorado, Indiana, Iowa, Minnesota, New Mexico, Ohio, South Carolina, Tennessee, West Virginia, and Wisconsin.

Opt-out laws have so far failed in Connecticut, Florida and Missouri.

What continues to remain public record under the federal act includes information on vehicular accidents, driving violations and a driver's status.

Bender said states must continue to pass opt-out laws. Even if the South Carolina case is successful, it will only enjoin the federal government from enforcing the federal act only in that state.

In the meantime, the federal act has created a bureaucratic nightmare for state officials who must now create special forms and police the release of its records.

If you don't know what's happening in your state, find out.

Additional Sources:

Attorney Jay Bender
Baker, Barwick, Ravenel & Bender LLP
Columbia, S.C.

Attorney General Charlie Condon
Columbia, S.C.
(contact Jennifer Graham or Robb McBurney, 734-4399)

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