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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POLLOCK v. UNITED STATES DEPARTMENT OF JUSTICE (August 13, 2009)

For almost 100 years, the United States government has operated a gun range on the shores of Lake Michigan just north of Chicago. Bullets and shotgun pellets ended up in the lake. These bullets and pellets contain lead, a toxic substance potentially harmful to human health. Steven Pollock is an attorney who lives approximately 13 miles from the range. He is also the executive director of an environmental group interested in the protection of Lake Michigan. Pollock and the environmental group brought a suit against the United States, alleging that the release of lead into the lake violated several federal environmental laws. The plaintiffs supported their standing by submitting the affidavits of Pollock and another group member. They stated that they enjoyed watching birds and visiting parks in the general vicinity of the range, they drank water from the lake and they ate fresh and saltwater fish. The district court dismissed the complaint for lack of standing. Plaintiffs appeal.

In their opinion, Judges Cudahy, Manion and Tinder affirmed. The only issue before the Court was standing. The Court recited the general standing requirements -- a concrete threat of injury, an injury that is actual and not hypothetical, an injury traceable to the defendant's conduct, and an injury likely to be redressed through a favorable decision of a court. After reviewing some of the Supreme Court jurisprudence on standing, the Court addressed each of the injuries listed in the affidavits. First, the fact that Pollock drinks water from the lake does not support standing. He failed to carry his burden of showing that any alleged pollution affected his particular water supply. Second, Pollack’s statement that he eats "fresh water and ocean" fish does not even implicate Lake Michigan and does not support standing. Third, his general allegations that he enjoys "watching wildlife" and enjoys the "public areas" in and near Lake Michigan are not specific enough geographically to support standing. Since Pollock cannot establish his own standing, the environmental group cannot either.

Judge Cudahy concurred in a separate opinion. He criticized the Supreme Court for developing an "injury in fact" test that was "hopelessly confusing" to apply. Although he concurred, he found the alleged injury relating to drinking water to be a much closer question than the majority. Instead of relying on the failure of the allegations to create standing, Judge Cudahy looked at the evidence presented. Instead of a mere facial challenge to standing, the defendants here challenged the factual basis for Pollock's alleged injury. Judge Cudahy cited the government’s evidence that Pollock's community draws its drinking water from outside the area of the lake affected by the range and that the community has attributed the small amount of lead in its drinking water to pipes, not bullets. Relying on that evidence, Judge Cudahy concurred.

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