Publication Of DOB, Height, Weight, Eye And Hair Color Violates Officers’ Rights

Twenty-one-year-old David Koschman died after an April 25, 2004 altercation with R.J. Vanecko, a nephew of Richard M. Daley, then-Mayor of Chicago. Given Vanecko’s political connections, the subsequent Chicago Police Department investigation was highly publicized. Several weeks after the incident, the Department placed Vanecko in an eyewitness lineup, in which five Chicago police officers participated as “fillers.” The officers closely resembled Vanecko in age, height, build, and complexion. When eyewitnesses failed to positively identify Vanecko as the perpetrator, the Department declined to charge him and closed the investigation.

Suspicious that the Department may have manipulated the homicide investigation because of Vanecko’s high-profile Chicago connections, the Chicago Sun-Times published a series of investigative reports criticizing the Department’s handling of the case. One such report questioned the legitimacy of the Vanecko lineup. The article, “Daley Nephew Biggest Guy on Scene, But Not in Lineup,” highlighted the physical resemblance between Vanecko and the lineup “fillers” in an effort to demonstrate that the officers resembled Vanecko too closely for the lineup to be reliable.

To support this accusation, the Sun-Times published photographs of the lineup, as well as the names of each of the five officer “fillers.” The Sun-Times obtained these names and photographs from the Chicago Police Department pursuant to a request under the Illinois Freedom of Information Act. However, the Sun-Times article featured not only the lineup photographs and the officers’ full names, but also the months and years of their births, their heights, weights, hair colors, and eye colors. The Sun-Times obtained the additional identifying information from motor vehicle records maintained by the Secretary of State.

Under the Driver’s Privacy Protection Act, 18 U.S.C. § 2721, enacted by Congress in 1994, “it shall be unlawful for any person knowingly to obtain or disclose personal information from a motor vehicle record.” The officers sued the Sun-Times in federal court, claiming that by acquiring and publishing each officer’s approximate birth date, height, weight, hair color, and eye color, the Sun-Times violated their rights under the Act. The Sun-Times contended that the details it acquired from the officers’ driving records – i.e., each officer’s birth date, height, weight, hair color, and eye color – fell outside the statutory definition of “personal information” and that, therefore, the acquisition and publication of the officers’ information did not violate the Act.

The federal Seventh Circuit Court of Appeals ruled in the officers’ favor. The Court found that “on its face, the Act’s language appears broad: ‘Personal information’ means information that identifies an individual,’ and there is no indication that Congress intended the enumerated list of examples to be exhaustive. The Supreme Court has also signaled that ‘personal information’ may well include categories of information beyond those specifically identified in the statute.

“Each category of published information at issue here (age, height, weight, hair color, eye color) relates to the officers’ physical appearance and, therefore, indisputably aids in identifying them. Yet the Sun-Times insists that this information is merely descriptive and cannot be said to identify an individual because it does not uniquely single out a particular person as does, for example, a Social Security number. However, the categories of ‘personal information’ explicitly included under the law directly undermine the Sun-Times’s theory. Although many of the itemized categories (e.g., driver identification number) do uniquely identify the individual with whom they are associated, others (e.g., medical and disability information) do not.

“Also, the Act was enacted as a public safety measure, designed to prevent stalkers and criminals from utilizing motor vehicle records to acquire information about their victims. Prior to the law’s enactment, anyone could contact the department of motor vehicles in most states and, simply by providing a license plate number and paying a nominal fee, obtain the corresponding driver’s address and other pertinent biographical information – no questions asked. The intent of the Act is simple – to protect the personal privacy and safety of all American licensed drivers.

“Based on the foregoing analysis, we conclude that each officer’s approximate date of birth, height, weight, hair color, and eye color fall within the range of ‘personal information’ to which the Act’s protections apply. The Sun-Times therefore violated the Act when it knowingly obtained the officers’ personal details from the Illinois Secretary of State and proceeded to publish them.

“The Act’s prohibition on disclosing individuals’ personally identifiable information – separate and apart from its ban on obtaining that information – advances two government interests, both of which relate to the Act’s underlying public safety goals: First, the interest in removing an incentive for parties to unlawfully obtain personal information in the first instance; and second, the interest in minimizing the harm to individuals whose personal information has been illegally obtained. Although the Sun-Times article relates to a matter of public significance – the allegation that the Chicago Police Department manipulated a homicide investigation – the specific details at issue are largely cumulative of lawfully obtained information published in that very same article. We conclude that the government’s asserted interests are both important and furthered by the Act’s prohibition on disclosure.”

Dahlstrom v. Sun-Times Media, LLC, 777 F.3d 937 (7th Cir. 2015).