Seventh Circuit Court of Appeals Commentary : In Their Opinion : Lawyer & Attorney Michael E. Rigney : Kelley Drye & Warren Law Firm

GRACZYK v. WEST PUBLISHING COMPANY (September 28, 2011)

Congress passed the Driver's Privacy Protection Act in 1993 to limit the dissemination of sensitive information acquired by state departments of motor vehicles. In general, the Act prohibits the disclosure of personal information obtained in connection with a motor vehicle record, although it contains several exceptions. A class of Illinois licensed drivers brought suit against West Publishing Company, alleging that West acquires sensitive personal information from motor vehicle departments for the purpose of reselling it, all in violation of the Act. Judge Gettleman (N.D. Ill.) dismissed the complaint, concluding both of that the plaintiff class lacked standing and that the complaint failed to state a claim. The class appeals.

In their opinion, Seventh Circuit Judges Posner, Flaum, and Williams affirmed. The Court first addressed and rejected the district court's conclusion with respect to standing. The Act creates a private right of action for the improper disclosure of personal information. The plaintiffs have alleged that West's acquisition and use of the information violates the Act. If plaintiffs prevail, West could no longer obtain and sell that information. The plaintiffs have alleged injury in fact that would be redressed by a ruling in their favor. They therefore have standing. With respect to the merits, however, the Court agreed with the district court that the complaint failed to state a claim. Here, the class does not dispute that the ultimate recipients of the sensitive information (i.e., West's customers) have a permissible use under the Act. Furthermore, the class concedes that West can lawfully obtain sensitive information from motor vehicle departments, if that information is first requested by a West customer. The class' contention is that West cannot obtain the sensitive information in bulk, without a specific request, and later sell it for an authorized purpose. Although "authorized recipient," is not defined in the Act, the Court concluded that the class' interpretation was not consistent with Congressional intent. There is no meaningful distinction between obtaining information to respond to a specific request or storing information in bulk in order to respond more efficiently to later requests. The Court also noted that the Fifth Circuit agrees and that the Department of Justice has issued an unpublished letter approving the practice. The complaint does not state a cause of action and was properly dismissed.

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SENNE v. VILLAGE OF PALATINE (July 11, 2011)

The Court granted a petition for rehearing en banc on September 13, 2011 and vacated the following opinion.

Jason Senne left his car parked overnight in Palatine, Illinois. Unfortunately, he was parked illegally. When he returned to his car, he found that it had been ticketed. The ticket itself included his name, his address, his date of birth, his sex, his height, and his weight. It had been placed on the car approximately five hours before he discovered it. The ticket itself could also be used as an envelope if the recipient decided to pay the fine by mail. Instead of paying the $20 fine, Senne filed a class action under the Driver's Privacy Protection Act. The Act prohibits the disclosure of personal information contained in a motor vehicle record. Judge Kennelly (N.D. Ill.) granted Palatine's motion to dismiss, concluding that the placement of the ticket on the windshield did not constitute a disclosure under the Act and that, even if it did, the disclosure was permissible under the Act. Senne appeals.

In their opinion, Chief Judge Easterbrook and Judges Flaum and Ripple (concurring in part and dissenting in part) affirmed. The Court first turned to the language of the statute to ascertain Congress's intent. The Act provides that a covered person "shall not knowingly disclose or otherwise make available" the personal information. The Court rejected the Village's strained definition of "disclose" to apply only to those situations in which information is actually shared with someone. Relying both on the standard dictionary definition of "disclose" and the rest of the statutory phrase ("or otherwise make available"), the Court concluded that the placement of a parking ticket on a car constitutes "disclosure." The Act, however, lists 14 permissible uses, one of which is that the information may be disclosed in connection with any court or agency proceeding, including the service of process. Placing a parking ticket on a car constitutes service of process. Palatine's conduct was therefore permissible. The Court specifically rejected Senne's argument that the permissible use exceptions included only disclosures that were necessary for the purpose of the exception. Finally, the Court rejected Senne's argument that including the personal information on a piece of paper that could be used as an envelope constituted a second violation. The disclosure is still in connection with the court proceeding so it was still a permissible use. Even if it was an impermissible use, it would be the ticket recipient, not the Village of Palatine, that would be liable.

Judge Ripple wrote separately. He concurred with the majority's treatment of "disclosure." In his view, however, Palatine violated the Act because it disclosed personal information that it did not need to disclose to accomplish the service of process. The exceptions must be interpreted in accordance with Congressional intent. Therefore, Judge Ripple believed that the Act must be read to limit the permissible uses to the disclosure of information that is reasonably necessary to effectuate the government's purpose. Here, none of the information Senne complains of was necessary to achieve Palatine's purpose -- to notify the owner of the car of a parking violation.

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LAKE v. NEAL (November 6, 2009)

Joseph Lake applied for a drivers license with the Illinois Department of Motor Vehicles (“DMV”). The National Voter Registration Act permits a citizen to register to vote at the same time he or she applies for a driver’s license -- so Lake filled out a voter registration form. After he allegedly learned that someone acquired his personal information from the Chicago Board of Election Commissioners, Lake filed suit. He alleges that the Board violated the Driver's Privacy Protection Act (“DPPA”) when it disclosed his personal information. The district court granted a motion to dismiss. Lake appeals.

In their opinion, Chief Judge Easterbrook and Judges Bauer and Evans affirmed. The DPPA does provide a private cause of action against one who discloses information "from a motor vehicle record." The statute defines "motor vehicle record" as any record that pertains to any one of several documents issued by the DMV. The Court concluded that the voter registration form does not pertain, in the common sense of that word, to any document issued by the DMV. Although it can be filled out as part of the same process, it is not a part of and has nothing to do with any DMV documents. Since it is not a “motor vehicle record,” there is no cause of action for the wrongful disclosure of information contained therein.

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