The U.S. Court of Appeals for the Seventh Circuit has ruled that the inclusion of certain personal information on a parking ticket that is placed on the offending vehicle could violate the federal Driver’s Privacy Protection Act, 18 U.S.C. §§2721-25 (the DPPA). The ruling in Senne v. Village of Palatine, No. 10-3243, might have an impact on the information that some municipalities routinely print on their parking tickets.
Under the DPPA, state departments of motor vehicles are prohibited from releasing certain “personal information” contained in motor vehicle records. There are 14 exceptions to that prohibition. When personal information is released under an exception, the recipient of the information (such as a local police department) is prohibited from re-disclosing that information, subject to the same exceptions. “Personal information” is defined in the DPPA to include an individual’s photograph, name, address, telephone number, social security number, driver’s license number and medical information.
At 1:35 one morning in August 2012, a Village of Palatine, Illinois, police officer ticketed a vehicle for violating the Village’s overnight parking ban. The ticket included official information such as the officer’s name and badge number, the date and time, vehicle information and the offense. The ticket also included the owner’s full name, address, driver’s license number, date of birth, sex, height and weight. The owner sued the Village under the DPPA, on behalf of himself and other similarly situated individuals, for including the latter information. The DPPA provides a private right of action.
The two major issues in the case were whether placing a parking ticket under a windshield wiper is “disclosure” and, if so, whether that disclosure fit one of the exceptions under the DPPA.
Three Court Rulings
In its decision issued on August 6, 2012, the Seventh Circuit sitting en banc ruled that placing a parking ticket under a windshield wiper is “disclosure” of personal information prohibited by the DPPA and that the lawsuit should move forward in the lower federal district court because the disclosure may have exceeded the scope of the exceptions to non-disclosure in the DPPA cited by the Village.
The district court previously had dismissed the lawsuit. That court accepted the Village’s arguments that leaving a parking ticket under a windshield wiper was not a “disclosure” and that, in any event, the personal information printed on the ticket was a permitted disclosure under three of the 14 exceptions to the DPPA. The three exceptions cited by the Village, included in Section 2721(b) of the DPPA, were that the disclosure was: (a) for use by a law enforcement agency in carrying out its functions [§2721(b)(1)], (b) for use in connection with matters of motor vehicle or driver safety [§2721(b)(2)], or (c) for use in connection with a civil proceeding including service of process [§2721(b)(4)].
A three-judge panel of the Seventh Circuit initially affirmed the district court’s dismissal, 2-1, with Judge Kenneth F. Ripple dissenting. The panel, in an opinion written by Judge Joel M. Flaum, rejected the Village’s argument that the ticket placement was not a disclosure of the personal information. However, the panel determined that because the ticket constituted service of process related to the parking violation, that use of the personal information was permissible under the Section 2721(b)(4) exception (noted above).
The Seventh Circuit granted the rare rehearing en banc and reversed the earlier panel decision. In an opinion by Judge Ripple, seven judges agreed that placement of the parking ticket was a disclosure of the personal information and, further, that the disclosure may not fall within the scope of any of the three cited exemptions. The court ruled that the phrase “for use” at the beginning of each of the exceptions required an analysis of whether inclusion of the personal information is compatible with the exception and whether the amount and type of the personal information disclosed exceeds the scope of the exception. The opinion states that each exception must be read “with an eye toward its contribution to the ‘overall statutory scheme,’” and that it is clear that the applicability of a particular exception does not automatically mean that all personal information may be released under that exception.
This statutory interpretation is the key to the decision and the basis for two dissents, which were joined by four judges. Judge Flaum’s dissent, which was joined by Judges Richard A. Posner, Frank H. Easterbrook and Diane S. Sykes, agreed with the majority on the disclosure issue. But Judge Flaum differed, as he did when writing the earlier panel decision, on the application of the exceptions. He argued that the statute was clear enough on its face that personal information may be disclosed if an exception applies. He stated, “Neither the text [of the DPPA] nor the legislative history conveys Congress’s intent to limit the information that may be disclosed in connection with a particular exception.”
Judge Posner wrote a separate dissent stating that the provisions of the DPPA must be applied literally, because there is no indication that the legislature meant otherwise and a literal application does not lead to absurd results. Both Judge Flaum and Judge Posner stressed that the majority opinion leaves local agencies without guidance as to when and how personal information may be disclosed even when an exception applies.
Implications for Local Governments
A full understanding of the impact of the Seventh Circuit’s decision must await further action by the district court, legislative action to amend the DPPA or a ruling by the U.S. Supreme Court. Meanwhile, as a result of this ruling, local government agencies — especially police departments — should review their practices related to use of personal information obtained from motor vehicle records. The best advice for now is to strictly regulate the use of documents that contain that type of personal information and strictly limit the circumstances when that type of personal information is disclosed. This caution applies not just to parking tickets, but also to any document that contains that type of personal information.