Friday, February 13th, 2015

Recent Case Raises Concerns in Handling FOIA’d Police Reports

The Driver’s Privacy Protection Act is a federal law that prohibits knowingly obtaining or disclosing “personal information” from motor vehicle records. Personal Information includes an individual’s photograph, social security number, driver’s license number, name, and address. In 2013, the case of Senne v. Palatine applied the Driver’s Privacy Protection Act and altered the way municipalities and government agencies issue parking tickets. In Senne, a class of Plaintiffs sued the Village of Palatine, alleging that Palatine’s practice of issuing parking tickets that contained the names, addresses, and other personal information of the vehicle owners violated the Driver’s Privacy Protection Act. While Palatine ultimately prevailed after appeals all the way up to the Supreme Court, Senne changed the way municipalities across the state issue parking tickets. Now, the recent case of Dahlstrom v. Sun Times Media, LLC could change the way municipalities fill their FOIA requests.

Dahlstrom began with a FOIA request from the Sun Times to the City of Chicago for police reports and other documents related to the high profile Richard Vanecko case involving the nephew of then Chicago Mayer Richard M. Daley. With its FOIA response, the Sun Times published a critical article on the way the Chicago Police Department handled an eyewitness photo lineup in the Vanecko case. Five Chicago police officers who closely resembled Vanecko participated in the lineup as fillers: Plaintiffs Dhalstrom, Gallagly, Kelly, Shea, and Welch. In the end, eyewitnesses were unable to pick Vanecko out of the line-up, allegedly because the fillers too closely resembled Vanecko. In its article, the Sun Times not only featured the Plaintiffs’ names and lineup photos, but it revealed the Plaintiffs’ month and year of birth, height, weight, and hair and eye color.

The Plaintiffs brought suit against the Sun Times for a violation of the Driver’s Privacy Protection Act, alleging that the Sun Times knowingly obtained and disseminated information that came from motor vehicle records maintained by the Secretary of State—the Plaintiffs’ birth month and year, height, weight, and hair and eye color. The Sun Times moved to dismiss the Plaintiffs’ suit, arguing the First Amendment constitutional right of free speech and press. On February 6, 2015, the Seventh Circuit Court of Appeals upheld the District Court’s denial of the motion to dismiss and concluded that the Sun Times’ speech was not protected; it involved personal information from motor vehicle records. The Dahlstrom Court reiterated that personal information obtained from motor vehicles may not be disclosed or published.

What does this mean for municipalities and FOIA? It means more redacting. Municipalities routinely tender Police Reports in response to FOIA requests. Police Reports are generally replete with personal information on suspects and witnesses that have been obtained through the LEADS program, which uses Secretary of State motor vehicle records. This includes Driver’s License photos, dates of birth, addresses, height, weights, and hair and eye color.  In light of Dahlstrom, all personal information contained in police reports obtained by the police officer from LEADS or motor vehicle records should be redacted before the reports are tendered in a FOIA response. While the City of Chicago was not named as a Defendant in the Dahlstrom lawsuit, it could have easily been so named along with the Sun Times for providing personal information obtained from motor vehicle records.


Jennifer J. Gibson

Author: Jennifer J. Gibson