1. Driver Privacy Rights and Agency Liability
Matthew P. Dolan
Attorney
Public Agency Training Council

2. Driver’s Privacy Protection Act
Congressional Record indicates that the Act was intended to prevent confidential information, given to and retained by departments of motor vehicles, from being used for purposes of:
Stalking
Harassment
Related acts stemming from the availability of an individual’s personal information based on a license plate.

3. Driver’s Privacy Protection Act
Federal law intended to secure personal information contained in state DMV records from being obtained or disclosed unless necessary to law enforcement functions. See 18 USC §
“personal information” means 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, but does not include information on vehicular accidents, driving violations, and driver's status. See 18 USC § 2725(3)

4. Unlawfully Obtaining Personal Information
Obtaining personal information from the state department of motor vehicles is prohibited unless doing so is necessary:
To the carrying out of law enforcement functions, or
For use in connection with any civil, criminal, administrative, or arbitral proceeding in any Federal, State, or local court or agency or before any self-regulatory body, including the service of process, investigation in anticipation of litigation, and the execution or enforcement of judgments and orders, or pursuant to an order of a Federal, State, or local court.
All employees are expected to have an articulable rationale for obtaining personal information from the state department of motor vehicles.
See Model Policy, Section IV(a) and (b)

8. Unanswered Questions— United States v. Ellison
United States v. Ellison  No 4th Amendment protection from an officer’s computer check finding an outstanding warrant. D had no reasonable expectation of privacy in the information contained on his license plate, therefore no probable cause was required for the officer to run a computer check on the license plate. But, the 6th Circuit did not address any DPPA issues. See United States v. Ellison, 462 F.3d 557 (6th Cir. 2006)
Would the 6th Circuit have found the check to be necessary to carrying out law enforcement functions?
Is the DPPA necessity requirement as formidable as the standard for probable cause?

9. Unlawfully Disclosing Personal Information
Public disclosure of personal information obtained from the state department of motor vehicles is prohibited without the express consent of the person or persons in question, unless doing so is necessary:
To the carrying out of law enforcement functions, or
For use in connection with any civil, criminal, administrative, or arbitral proceeding in any Federal, State, or local court or agency or before any self-regulatory body, including the service of process, investigation in anticipation of litigation, and the execution or enforcement of judgments and orders, or pursuant to an order of a Federal, State, or local court.
When police records are requested without the express consent of the person or persons named therein, personal information as defined by Section III(C) of this policy shall be removed prior to disclosure.
Public disclosures include, but are by no means limited to, parking tickets and other citations which are placed in public view.

10. Senne v. Vill. of Palatine
Unlawful Disclosure case.
P driver brought a claim against D village, claiming that the village's practice of printing personal information obtained from motor vehicle records on parking tickets was a violation of the DPPA.
Driver's vehicle was parked on a public way in violation of the village's overnight parking ban. A police officer placed a parking citation under a windshield wiper blade of the vehicle. The citation remained on the windshield, in public view on a public way, until the driver retrieved it. The citation included his full name, address, driver's license number, date of birth, sex, height and weight.
Also, the citation doubled as an envelope to remit payment of the fine, which, if used as intended, would have displayed the printed personal information on its exterior when mailed.
7th Circuit found that Congress intended to include within the DPPA's reach the kind of publication of information that occurred, namely, the placement of the printed citation on the driver's windshield.
7th Circuit: “It is not at all clear that either of the statutory exceptions at issue implicated the release of all of this information. With respect to some of that information, it is difficult to conceive, even on a theoretical level, how such information could play a role in the excepted law enforcement purposes.”
See Senne v. Vill. of Palatine, 695 F.3d 597 (7th Cir. 2012)

11. Articulating Why Disclosure is Necessary to Law Enforcement Functions
In Senne, the village articulated no reason as to why personal information needed to be included on the parking ticket.

13. Cost-Benefit Analysis— Extending the 7th Circuit Standard
The Senne decision does not control for those agencies outside of the 7th Circuit.
However, when would including personal information on a parking ticket serve be necessary to carrying out law enforcement functions?

14. Model Policy—Key Points
“The agency recognizes the right of drivers and other individuals to have their personal information retained by the state department of motor vehicles to remain private, unless that privacy interest is superseded by a legitimate law enforcement necessity.”
“All employees are expected to have an articulable rationale for obtaining personal information from the state department of motor vehicles.”

15. Final Take-a-way—Officers Need Articulable Reasons for Obtaining or Disclosing
Agency policy should make officers aware that they may be required to answer the following question with respect to a DMV search or disclosure of DMV information: How is the use/disclosure of the DMV record necessary to the carrying out of law enforcement functions?

16. Disclaimer
Court holdings can vary significantly between jurisdictions. As such, it is advisable to seek the advice of a local prosecutor or legal advisor regarding questions on specific cases. This presentation is not intended to constitute legal advice on a specific case.

17. Thank You!
Matthew P. Dolan Attorney Public Agency Training Council

18. Upcoming In-Class Training
Supervisor Liability
Indianapolis, IN 10/16/2013—10/17/2013
Denver, CO /28/2013—10/29/2013
Gonzales, LA /3/2013—12/4/2014
Frisco, TX /6/2014—1/7/2014
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Rio Rancho, NM 1/13/2014—1/14/2014
Supervising the Toxic Officer
Indianapolis, IN /25/2013—11/26/2013