Jason Senne v. Village of Palatine, Illinois

In the
United States Court of Appeals
For the Seventh Circuit
No. 10-3243
JASON M. SENNE,
Plaintiff-Appellant,
v.
V ILLAGE OF P ALATINE,
ILLINOIS,
Defendant-Appellee.
Appeal from the United States District Court
for the Northern District of Illinois, Eastern Division.
No. 1:10-cv-05434—Matthew F. Kennelly, Judge.
R E A R G U E D E N B A N C F EBR U A R Y 9, 2012— D E C ID E D A U G U ST 6, 2012
Before E ASTERBROOK, Chief Judge, and P OSNER, F LAUM ,
R IPPLE, K ANNE, R OVNER, W OOD , W ILLIAMS, SYKES, T INDER
and H AMILTON, Circuit Judges.
R IPPLE, Circuit Judge. Jason Senne’s vehicle was parked
overnight on a public way in the Village of Palatine,
Illinois (the “Village”), where such parking was prohib-
ited by ordinance. Village authorities placed a parking
citation on his windshield. Various pieces of personal
2 No. 10-3243
information, obtained by the Village from a database
originating with the Illinois Department of Motor
Vehicles, were printed on the citation. Mr. Senne sub-
sequently brought this action on behalf of himself and
a class of others similarly situated against the Village.1
He claimed that the Village’s practice of printing per-
sonal information obtained from motor vehicle records
on parking tickets was a violation of the Driver’s
Privacy Protection Act (the “Act” or the “DPPA”), 18
U.S.C. §§ 2721-25. Under the DPPA, state departments
of motor vehicles (“DMVs”) are restricted in their
ability to disclose certain personal information con-
tained in motor vehicle records; authorized recipients
are further restricted in redisclosing information ob-
tained from those records. See id. § 2721. Injured persons
are provided with a private right of action. See id. § 2724.
The Village moved to dismiss Mr. Senne’s claim
for failure to state a claim upon which relief can be
granted. See Fed. R. Civ. P. 12(b)(6). It contended that
issuing a parking citation was not a disclosure under
the statute and that, even if it were, it fell within a specifi-
cally permitted purpose identified in the statute. The
district court agreed and granted the Village’s motion. A
panel of this court affirmed, Senne v. Vill. of Palatine,
Illinois, 645 F.3d 919 (7th Cir. 2011), and the full court
1
The district court’s jurisdiction was premised on 28 U.S.C.
§ 1331 and 18 U.S.C. § 2724.
No. 10-3243 3
granted rehearing en banc.2 Mr. Senne’s appeal requires
that we examine the scope of the DPPA’s protection
of personal information contained in motor vehicle
records and the reach of its statutory exceptions. We
now conclude that the parking ticket at issue here did
constitute a disclosure regulated by the DPPA, and we
further agree with Mr. Senne that, at this stage of the
litigation, the facts as alleged are sufficient to state
a claim that the disclosure on his parking ticket ex-
ceeded that permitted by the statute. Accordingly, we
reverse the judgment of the district court and remand
for further proceedings consistent with this opinion.
I
BACKGROUND
A. Facts
Mr. Senne’s complaint, which we must accept for
present purposes as true,3 alleges that, on August 20,
2010, his vehicle was parked on a public way in violation
of the Village’s overnight parking ban. At 1:35 a.m., a
Palatine 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 Mr. Senne retrieved it some five hours later.
2
Our jurisdiction is predicated on 28 U.S.C. § 1291.
3
Indep. Trust Corp. v. Stewart Info. Servs. Corp., 665 F.3d 930, 934
(7th Cir. 2012).
4 No. 10-3243
The ticket had been printed electronically on a pre-
existing form. The printed information included a date
and time stamp, the officer’s name and badge number
and the parking offense, which was the basis for the
citation. It also included various information about the
vehicle, including the make, model, color, year, license
number and vehicle identification number (“VIN”). In
addition, and most relevant to the present case, the cita-
tion included personal data about Mr. Senne, whom
motor vehicle records showed to be the owner of the
illegally parked vehicle. Specifically, the citation in-
cluded his full name, address, driver’s license number,
date of birth, sex, height and weight.
The citation doubled as an envelope to remit payment
of the fine, which, if used as intended, would have dis-
played the printed personal information on its exterior
when mailed. It instructed Mr. Senne that he could
either pay the $20 fine in person, mail a check or money
order using the ticket as an envelope or request a
hearing to contest the citation.
B. District Court Proceedings
After receiving the citation, Mr. Senne brought this
action in the district court. He alleged that the parking
ticket amounted to a disclosure of protected personal
information by the Village in violation of the DPPA. His
complaint requested, for himself and a putative class,
statutory liquidated damages and injunctive relief. He
also requested limited, expedited discovery relating to
the total number of parking citations issued by the
No. 10-3243 5
Village in the relevant period. Shortly thereafter, he
moved for a temporary restraining order and pre-
liminary injunction prohibiting the Village from
printing any personal information, as defined by the
DPPA, on its parking citations.
In response, the Village filed a motion to dismiss
for failure to state a claim under Rule 12(b)(6). It con-
tended that the parking ticket was a permitted disclosure
under three separate categories in the statute: It was
a disclosure (1) “[f]or use by a[] government agency,
including a[] . . . law enforcement agency, in carrying
out its functions,” as permitted by § 2721(b)(1); (2) “[f]or
use in connection with matters of motor vehicle or
driver safety,” as permitted by § 2721(b)(2); and (3)
“[f]or use in connection with any civil[] . . . [or] administra-
tive[] . . . proceeding . . ., including the service of pro-
cess,” as permitted by § 2721(b)(4). The Village later
clarified that it did not concede that any disclosure
had occurred, other than to the plaintiff, who was the
subject of the record.
In a brief oral ruling, the district court agreed with the
Village and dismissed the case. The court specifically
held that the parking ticket did not fall within the
ambit of the statute because its issuance did not con-
stitute a disclosure. In the district court’s view, “what
the statute is talking about is what people would com-
monly call a disclosure, which is turning something over
to somebody else.” 4 Although the court found this basis
sufficient and concluded that reaching the statutory
4
R.37 at 4.
6 No. 10-3243
exceptions was unnecessary, it also held that § 2721(b)(1),
relating to a law enforcement agency carrying out its
functions, would exempt any disclosure made through
the parking citation. Mr. Senne timely appealed.
II
DISCUSSION
We review de novo the district court’s entry of judg-
ment on a motion to dismiss for failure to state a claim.5
We must construe the complaint in the light most
favorable to the plaintiff and must draw all reasonable
inferences in his favor.6 Taking the facts of the complaint
as true, the Village contends that the DPPA provides
no basis for relief.7
The Village contends that the district court’s judgment
ought to be affirmed for two reasons. First, it submits
that the printing of Mr. Senne’s personal information on
the citation and the placement of that citation on his
windshield did not constitute a disclosure under the
Act. Second, it submits that, in any event, the action
specifically was permitted by the exceptions to the
general limitation on disclosure in the statute. We shall
address each argument in turn.
5
Adkins v. VIM Recycling, Inc., 644 F.3d 483, 492 (7th Cir. 2011).
6
Id. at 492-93.
7
The parties raise no issue with respect to the adequacy of the
allegations in the complaint under Ashcroft v. Iqbal, 556 U.S. 662(2009).
No. 10-3243 7
A. Whether the Ticket is a Disclosure Regulated by
the DPPA
“As in any case of statutory construction, our analysis
begins with the language of the statute.” Hughes Aircraft
Co. v. Jacobson, 525 U.S. 432, 438 (1999) (internal quota-
tion marks omitted). Specifically, we begin by looking
broadly at the structure of the statute to acquire an un-
derstanding of the activity that it regulates. “Interpretation
of a word or phrase depends upon reading the whole
statutory text, considering the purpose and context of
the statute[] . . . .” Dolan v. United States Postal Serv.,
546 U.S. 481, 486 (2006).
Section 2721 contains the substantive prohibitions
and relevant exceptions that principally concern us. It
begins with a general restriction on the release of infor-
mation by a state DMV:
(a) In general.--A State department of motor
vehicles, and any officer, employee, or con-
tractor thereof, shall not knowingly disclose
or otherwise make available to any person or
entity:
(1) personal information, as defined in 18
U.S.C. 2725(3),[8 ] about any individual
8
Section 2725(3) of title 18 defines “personal information” as
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
(continued...)
8 No. 10-3243
obtained by the department in connection
with a motor vehicle record, except as pro-
vided in subsection (b) of this section; or
(2) highly restricted personal information,
as defined in 18 U.S.C. 2725(4),[ 9 ] about
any individual obtained by the depart-
ment in connection with a motor vehicle
record, without the express consent of
the person to whom such informa-
tion applies, except uses permitted in sub-
sections (b)(1), (b)(4), (b)(6), and (b)(9):
Provided, That subsection (a)(2) shall not in
any way affect the use of organ donation
information on an individual’s driver’s
license or affect the administration of or-
gan donation initiatives in the States.
18 U.S.C. § 2721(a). Subsection (b) defines various ex-
ceptions, to which we shall return in some detail. If an
exception in subsection (b) permits disclosure by a
state DMV to a specific second party, subsection (c) then
8
(...continued)
disability information, but does not include informa-
tion on vehicular accidents, driving violations, and
driver’s status.
9
“[H]ighly restricted personal information,” as defined in
18 U.S.C. § 2725(4), “means an individual’s photograph or
image, social security number, [and] medical or disability
information.” The parties are in agreement that this category
of information, and the restrictions applicable to it, are not
at issue in the present case.
No. 10-3243 9
regulates the separate activity that occurs when the
recipient of a record from the DMV is responsible for a
secondary disclosure to a third party. Specifically, sub-
section (c) allows for authorized recipients to “resell or
redisclose the information only for a use permitted under
subsection (b),” with further exceptions and require-
ments that need not detain us.1 0 Both subsection (a) and (c),
therefore, regulate a particular kind of disclosure
and direct the details of that regulation to subsection (b).
Our examination of the statute’s structure brings
into focus the precise context in which the present case
arises. The initial disclosure by the Illinois DMV to the
police department, or some other agency through
which the police department obtained its record, is gov-
erned by subsections (a) and (b); we discern no claim
in this case that this transaction violated the statute.
Instead, we are concerned with the secondary act of
the Village’s police department in placing the citation,
which included Mr. Senne’s personal information, on the
windshield. With that clarification, we turn to the first
question presented: whether the parking citation consti-
tuted a disclosure that the statute regulates.
The statute does not define a disclosure, but it does
provide us, in context, with sufficient information to
discern the meaning of the term. Smith v. Zachary, 255
F.3d 446, 448 (7th Cir. 2001) (“[T]he meaning of statutory
10
Subsections (d) and (e) relate to waivers of the statute’s
restrictions by the subject of the record, and limitations by
which the State may obtain such waivers; neither is claimed
to be in issue in the present case.
10 No. 10-3243
language, plain or not, depends on context. It is a funda-
mental canon of statutory construction that the words of
a statute must be read in their context and with a view
to their place in the overall statutory scheme.” (internal
quotation marks omitted) (citations omitted)). The term
“disclose” is first used in subsection (a), in the statu-
tory prohibition on initial disclosures. In that section, the
statute forbids a state DMV from “knowingly disclos[ing]
or otherwise mak[ing] available to any person or entity”
protected personal information. In our view, attaching
the terms “or otherwise make available” to the term
“disclose” leaves little doubt about the breadth of the
transactions Congress intended to regulate. Furthermore,
we believe it appropriate to read the statute’s later use
of the term “disclose” and of “redisclose” as short-
handed references back to subsection (a) and the broad
language employed there. So read, it is clear that Con-
gress intended to include within the statute’s reach
the kind of publication of information that occurred
here, namely, the placement of the printed citation on
Mr. Senne’s windshield.
The Village nevertheless maintains that placing the
ticket on the windshield did not effect a “disclos[ur]e”
within the meaning of the statute, principally because
Mr. Senne has failed to allege that anyone other than he,
the subject of the record, actually saw it. We are not
persuaded by this argument. First, such an interpreta-
tion ignores the broad language employed by Congress
to define and regulate disclosures. Second, such a
reading turns the statutory structure on its head. The
default rule of the statute is that the DMV, and any
person or entity authorized to view its records, is
No. 10-3243 11
prohibited from sharing the information. The statute
then authorizes specific disclosures—each of which, as we
shortly shall examine, has a limited object and a limited
class of recipients. See 18 U.S.C. § 2721(b). To suggest
that the meaning of the term “disclose” is so limited as
to take the act of publication of protected information
outside the statute’s reach because no specific recipient
is proven simply misunderstands the textual scheme
that Congress has forged. The action alleged here,
placing the information on the windshield of the vehicle
in plain view on a public way, is certainly sufficient
to come within the activity regulated by the statute re-
gardless of whether another person viewed the informa-
tion or whether law enforcement intended it to be
viewed only by Mr. Senne himself. The real effect of the
placement of the ticket was to make available Mr. Senne’s
motor vehicle record to any passer-by. This sort of pub-
lication is certainly forbidden by the statute.
The Village also makes a final, related argument that,
in order to form the basis for liability, any disclosure
must have been made knowingly. See 18 U.S.C. § 2724(a)
(“A person who knowingly obtains, discloses or uses
personal information, from a motor vehicle record, for
a purpose not permitted under this chapter shall be
liable to the individual to whom the information per-
tains[] . . . .”). According to the Village, because the officer
who placed the ticket on the windshield did not know that
anyone other than Mr. Senne would view it, there can be
no liability. This argument does not persuade us for two
reasons. First, it rests on the Village’s erroneous notion
that, in order for a disclosure to occur, there must be an
identified recipient. Second, it fundamentally misunder-
12 No. 10-3243
stands the term “knowingly.” Voluntary action, not
knowledge of illegality or potential consequences, is
sufficient to satisfy the mens rea element of the DPPA. See
Pichler v. UNITE, 542 F.3d 380, 396-97 (3d Cir. 2008)
(discussing the term “knowingly” as it is used in the civil
liability provisions of the DPPA and finding that knowl-
edge of illegality is not an element).
B. Whether the Statute Authorized the Disclosure
1.
Having determined that there was a disclosure, we
now turn to whether the police department’s disclosure
of Mr. Senne’s motor vehicle record violated the statute.
This task also is basically one of statutory construction.
We focus on the language of the statute, turning
to § 2721(b), which contains the universe of required
and permissible disclosures:
(b) Permissible uses.--Personal information re-
ferred to in subsection (a) shall be disclosed for
use in connection with matters of motor vehicle
or driver safety and theft, motor vehicle emis-
sions, motor vehicle product alterations, recalls,
or advisories, performance monitoring of motor
vehicles and dealers by motor vehicle manufactur-
ers, and removal of non-owner records from
the original owner records of motor vehicle manu-
facturers to carry out the purposes of titles I and
IV of the Anti Car Theft Act of 1992, the Automo-
bile Information Disclosure Act (15 U.S.C. 1231
et seq.), the Clean Air Act (42 U.S.C. 7401 et seq.),
No. 10-3243 13
and chapters 301, 305, and 321-331 of title 49,
and, subject to subsection (a)(2), may be disclosed
as follows:
(1) For use by any government agency,
including any court or law enforcement
agency, in carrying out its functions, or any
private person or entity acting on behalf
of a Federal, State, or local agency in carry-
ing out its functions.
(2) For use in connection with matters of
motor vehicle or driver safety and theft;
motor vehicle emissions; motor vehicle
product alterations, recalls, or advisories;
performance monitoring of motor vehicles,
motor vehicle parts and dealers; motor
vehicle market research activities, includ-
ing survey research; and removal of
non-owner records from the original owner
records of motor vehicle manufacturers.
(3) For use in the normal course of business
by a legitimate business or its agents, em-
ployees, or contractors, but only--
(A) to verify the accuracy of per-
sonal information submitted by the
individual to the business or its
agents, employees, or contractors;
and
(B) if such information as so sub-
mitted is not correct or is no longer
correct, to obtain the correct infor-
14 No. 10-3243
mation, but only for the purposes
of preventing fraud by, pursuing
legal remedies against, or recover-
ing on a debt or security interest
against, the individual.
(4) For use in connection with any civil,
criminal, administrative, or arbitral pro-
ceeding 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 judg-
ments and orders, or pursuant to an order
of a Federal, State, or local court.
(5) For use in research activities, and for
use in producing statistical reports, so long
as the personal information is not pub-
lished, redisclosed, or used to contact
individuals.
(6) For use by any insurer or insurance
support organization, or by a self-insured
entity, or its agents, employees, or contrac-
tors, in connection with claims investiga-
tion activities, antifraud activities, rating or
underwriting.
(7) For use in providing notice to the own-
ers of towed or impounded vehicles.
(8) For use by any licensed private investi-
gative agency or licensed security service
for any purpose permitted under this
subsection.
No. 10-3243 15
(9) For use by an employer or its agent or
insurer to obtain or verify information
relating to a holder of a commercial
driver’s license that is required under
chapter 313 of title 49.
(10) For use in connection with the opera-
tion of private toll transportation facilities.
(11) For any other use in response to re-
quests for individual motor vehicle records
if the State has obtained the express con-
sent of the person to whom such personal
information pertains.
(12) For bulk distribution for surveys,
marketing or solicitations if the State has
obtained the express consent of the person
to whom such personal information per-
tains.
(13) For use by any requester, if the re-
quester demonstrates it has obtained the
written consent of the individual to whom
the information pertains.
(14) For any other use specifically autho-
rized under the law of the State that holds
the record, if such use is related to the
operation of a motor vehicle or public
safety.
18 U.S.C. § 2721(b).
Against the backdrop of the general rule prohibiting
disclosures in subsection (a), subsection (b) provides
16 No. 10-3243
both a category of mandatory disclosures and several
categories of permissive disclosures. See Graczyk v. West
Publ’g Co., 660 F.3d 275, 280 (7th Cir. 2011) (identifying
the statute’s “countervailing purpose” as “allow[ing]
legitimate users to access the records”). The permissive
disclosures number fourteen in total and cover a range
of purposes and recipients including public entities,
insurers, licensed private investigators and certain com-
mercial users such as bulk marketers.
On appeal, the Village contends that the placement of
the citation on Mr. Senne’s windshield was permitted
under the statute either because the disclosure was
“[f]or use by a[] . . . law enforcement agency[] in
carrying out its functions,” id. § 2721(b)(1), or “[f]or use
in connection with any civil[] . . . [or] administrative[] . . .
proceeding . . ., including the service of process,” id.
§ 2721(b)(4). 1 1 The Village does not describe in any
length how all the information printed on the ticket
served either purpose; instead, it maintains, in effect,
that the statute does not require that analysis. In the
Village’s view, as long as it can identify a subsection of
the law under which some disclosure is permitted, any
disclosure of information otherwise protected by the
statute is exempt, whether it serves an identified pur-
pose or not.
We cannot accept the Village’s position. As we already
have explained, it is necessary to view each provision
in context, with an eye toward its contribution to the
11
On appeal, the Village no longer asserts that any dis-
closure was permitted under 18 U.S.C. § 2721(b)(2).
No. 10-3243 17
“overall statutory scheme.” See Smith, 255 F.3d at 448(internal quotation marks omitted). Here, the statute’s
purpose, clear from its language alone, is to prevent all
but a limited range of authorized disclosures of infor-
mation contained in individual motor vehicle records.
It is necessary that we respect this textually explicit
purpose as we evaluate the coverage of the exceptions
within the statute’s broad mandate.
Both of the exceptions that the Village identifies, along
with most of the other exceptions in the statute, begin
with the phrase “[f]or use.” In the Village’s view, these
words supply no meaning to the statutory text other
than to link grammatically the “may be disclosed” lan-
guage in the introductory paragraph of § 2721(b) to
the specific purposes and recipients identified in its
subsections. We believe that this explanation is unsatis-
factory. A basic canon of construction requires us to
give meaning to every word of a statute. See Duncan v.
Walker, 533 U.S. 167, 174 (2001). Moreover, and especially
in light of the particular statutory structure here that
sets forth such a broad prohibition against disclosure,
the exceptions should not be read to eviscerate the
rule they modify. The words “[f]or use” perform a
critical function in the statute and contain the neces-
sary limiting principle that preserves the force of the
general prohibition while permitting the disclosures
compatible with that prohibition.
Specifically, when the statutory language says that a
disclosure is authorized “[f]or use by a[] . . . law enforce-
ment agency[] in carrying out its functions,” 18 U.S.C.
§ 2721(b)(1) (emphasis added), that language means
18 No. 10-3243
that the actual information disclosed—i.e., the dis-
closure as it existed in fact—must be information that is
used for the identified purpose. When a particular piece
of disclosed information is not used to effectuate that
purpose in any way, the exception provides no protec-
tion for the disclosing party. In short, an authorized
recipient, faced with a general prohibition against
further disclosure, can disclose the information only
in a manner that does not exceed the scope of the
authorized statutory exception. The disclosure actually
made under the exception must be compatible with
the purpose of the exception. Otherwise, the statute’s
purpose of safeguarding information for security and
safety reasons, contained in the general prohibition
against disclosure, is frustrated.
Another part of the statutory language supports our
conclusion. As we have noted, the statute provides
even greater protection to a special class of data
referred to as “highly restricted personal information.”
18 U.S.C. § 2721(a)(2). Such information includes an in-
dividual’s social security number, photograph and
medical or disability information. Id. § 2725(4). For
this class of information, the statute allows for access
under only four of the listed fourteen exceptions,
including both the government function exception and
the court process exception at issue in this case. Id.
§ 2721(a)(2) (listing as permissible uses those described
in § 2721(b)(1) and (4)). Clearly, this section recog-
nizes the government’s legitimate need for broader
access to personal information than the statute
otherwise provides. Nevertheless, it does not provide
unlimited authority for law enforcement to access or
No. 10-3243 19
disseminate the information. Instead, the statute merely
allows that certain entities, including law enforcement,
may both need and use more kinds of information
than other authorized users, within the limitations of the
existing exceptions.
The fact that the statute maintains for highly restricted
personal information the existing exceptions for use
and dissemination provides further support for the
view that the exceptions must be read narrowly. If,
instead, we were to read the exceptions as broadly as
the Village asserts, the effect of the “highly restricted
personal information” section would be that the officer
could have printed Mr. Senne’s photograph and social
security number on the citation and left it open to public
view. We decline to read this statute, with a chief aim
of privacy protection, to allow such a dangerous result.
See City of Chicago v. United States Dep’t of the Treasury,
Bureau of Alcohol, Tobacco & Firearms, 423 F.3d 777, 781
(7th Cir. 2005) (noting that we will not read a statute
to thwart Congress’s manifest intent).
We conclude that the text of the statute limits the
content of authorized disclosures of protected informa-
tion in motor vehicle records through its requirement,
clear on its face, that any such disclosure be made
“[f]or use” in effecting a particular purpose exempted
by the Act.12
12
We pause to emphasize that we do not read “use” to mean
“necessary use,” nor do we require the Village to adopt
some form of “best practices” not commanded by the statute.
20 No. 10-3243
2.
Although an analysis of the statutory text provides
us with a clear answer to our inquiry, we note that the
limited legislative history provides significant support
for our conclusion. Specifically, it is clear that safety and
security concerns associated with excessive disclosures
of personal information held by the State in motor
vehicle records were the primary issue to be remedied
by the legislation. See, e.g., 140 Cong. Rec. H2526 (daily
ed. Apr. 20, 1994) (statement of Rep. Porter Goss)
(“The intent of this legislation is simple--to protect the
personal privacy and safety of all American licensed
drivers.”). In hearings held in the House Subcommittee
on Civil and Constitutional Rights, numerous witnesses
testified regarding the grave consequences of open
access to government records of personal information.
Not surprisingly, many witnesses mentioned the
murder of an actress, Rebecca Schaeffer, by a stalker who
had obtained her unlisted home address through the
California DMV, a crime that was viewed as a catalyst
for both state law privacy protections and the DPPA
itself.13 Other witnesses testified about the impact of the
availability of DMV records on the safety of domestic
13
See, e.g., The Driver’s Privacy Protection Act of 1993: Hearing on
H.R. 3365 Before the Subcomm. on Civil & Constitutional Rights
of the H. Comm. on the Judiciary (“Hearing on H.R. 3365”), 103d
Cong., 2d Sess., 1994 WL 212698 (Feb. 4, 1994) (statement of
Rep. James P. Moran); Hearing on H.R. 3365, 1994 WL 212813(Feb. 3, 1994) (statement of Janlori Goldman, Director, Privacy
and Technology Project, American Civil Liberties Union).
No. 10-3243 21
violence victims 14 and law enforcement officers and
their families15 targeted for retribution. Also mentioned,
however, were more random acts of violence, including
a crime spree of home invasion robberies in Iowa
that began when teenagers took down license numbers
of expensive vehicles and then obtained the registered
owners’ home addresses from DMV records. 1 6 The bill,
it seems, was viewed predominantly as a public safety
measure.
Not surprisingly, the Act’s expanded authority for
law enforcement was an important part of the same
narrative. Providing law enforcement with records as a
tool in carrying out their mission was viewed as an ap-
propriate piece of the crime-control strategy the bill
14
Hearing on H.R. 3365, 1994 WL 212822 (Feb. 3, 1994) (statement
of David Beatty, Director of Public Affairs, National Victim
Center).
15
Hearing on H.R. 3365, 1994 WL 212833 (Feb. 3, 1994) (statement
of Donald L. Cahill, Legislative Chairman, Fraternal Order
of Police).
16
Hearing on H.R. 3365, 1994 WL 212698 (Feb. 4, 1994) (statement
of Rep. James P. Moran); see also, e.g., Hearing on H.R. 3365,
1994 WL 212701 (Feb. 4, 1994) (statement of David F. Snyder,
Assistant General Counsel, American Insurance Association)
(“We support this legislation because it may, at least to some
extent, prevent violent crime.”); 139 Cong. Rec. S15,762 (daily
ed. Nov. 16, 1993) (statement of Sen. Barbara Boxer)
(citing similar incidents).
22 No. 10-3243
would create. 17 Speaking on the Senate floor in support
of the bill, Senator Harkin noted that the bill allowed
not only access to information by law enforcement
but, “[i]n appropriate circumstances,” disclosure “to a
citizen or group of citizens [that] will assist in carrying
out the function of the agency,” such as a neighbor-
hood watch organization. 139 Cong. Rec. S15,962 (daily
ed. Nov. 17, 1993) (statement of Sen. Harkin). However,
he qualified that the exception for law enforcement use
“is not a gaping loophole in this law.” Id. The exception
“provides law enforcement agencies with latitude in
receiving and disseminating this personal information,”
when it is done “for the purpose of deterring or preventing
crime or other legitimate law enforcement functions.” Id.(emphasis added); see also 139 Cong. Rec. S15,764 (daily
ed. Nov. 16, 1993) (statement of Sen. John Warner)
(“There are specific exceptions of course for law enforce-
ment individuals and other areas where proven ex-
perience shows that this information should flow. But in
17
Looking at all of the available history, there is no question that
the exception for law enforcement access to records was
viewed as a critical element in the bill’s attempt to “balance . . .
the legitimate governmental and business needs for this in-
formation[] and the fundamental right of our people to
privacy and safety.” 139 Cong. Rec. S15,763 (daily ed. Nov. 16,
1993) (statement of Sen. Barbara Boxer). The existence of an
exception related to law enforcement functions was men-
tioned by numerous supporters of the bill. See, e.g., 140 Cong.
Rec. H2522 (daily ed. Apr. 20, 1994) (statement of Rep.
James Moran).
No. 10-3243 23
those instances we have to presume it is somewhat protected.”
(emphasis added)).
The legislative history confirms what a careful and
thorough reading of the statute already has revealed:
Congress did not intend that the statutory exceptions
be divorced, logically or practically, from the purpose
of the statute. With respect to the law enforce-
ment-related exceptions in particular, there is support
in the legislative history for the view that the excep-
tions not only were compatible with the overall
purpose, but indeed supported it. Consistent with the
textual interpretation that we already have made, the
legislative history reflects the view that law enforce-
ment has a legitimate need for information contained
in state records and the authority to use that informa-
tion to effectuate the purposes identified in the Act
without fear of liability.
C. The Effect of the DPPA on the Village’s Parking
Citation
With this understanding of the statute firmly in mind,
we turn to the particulars of this case in its current pos-
ture. Certainly, the complaint before us plausibly alleges
that the information actually disclosed by the parking
citation was not “[f]or use by a[] . . . law enforcement
agency[] in carrying out its functions,” or “[f]or
use in connection with any civil[] . . . [or] administra-
tive[] . . . proceeding . . ., including the service of pro-
cess.” 18 U.S.C. § 2721(b)(1), (4).
24 No. 10-3243
The citation provided to Mr. Senne did constitute
service of process in the administrative proceeding re-
garding the parking violation.1 8 Further, the issuance of
a parking citation is part of the function of the Village’s
police department. However, the complaint does put in
issue whether all of the disclosed information actually
was used in effectuating either of these purposes. The
otherwise protected information actually disclosed here
included Mr. Senne’s full name, address, driver’s
license number, date of birth, sex, height and weight. 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 infor-
mation could play a role in the excepted law enforce-
ment purposes. That issue cannot be resolved on review
of the entry of judgment on a motion to dismiss by
the Village.
Further proceedings will permit the parties to explore
this question. There are very real safety and security
concerns at stake here. For example, an individual
seeking to stalk or rape can go down a street where
overnight parking is banned and collect the home
address and personal information of women whose
vehicles have been tagged. He can ascertain the name,
18
See 625 ILCS 5/11-208.3(b)(3) (authorizing municipalities
to effect service for parking violations by placing notice on the
vehicle); Palatine, Illinois, Code of Ordinances § 2-707(b)(3)
(allowing complaints to be affixed to “the property where
the violation is found”).
No. 10-3243 25
exact address including the apartment number and
even other information such as sex, age, height and
weight pertinent to his nefarious intent. Similarly, a
public official, having gone to great lengths to protect
himself and his family from the threat of violence
that unfortunately every public official faces, bears the
risk that an expired parking meter violation might
provide an opportunity for an individual intent on
causing the official or his family bodily harm or death.
Indeed, in the original hearing on the DPPA, law enforce-
ment agents themselves expressed concerns about their
personal safety and the safety of their families because
of information that otherwise could be obtained from
the records associated with their personal vehicles. 1 9 The
possibilities for identity theft are obvious. Given the
concern of Congress for these safety and security issues,
the disclosed information actually must be used for the
purpose stated in the exception.2 0
19
See Hearing on H.R. 3365, 1994 WL 212833 (Feb. 3, 1994)
(statement of Donald L. Cahill, Legislative Chairman,
Fraternal Order of Police).
20
The issue of the allocation of the burden of proof with respect
to the exceptions, see Thomas v. George, Hartz, Lundeen, Fulmer,
Johnstone, King, & Stevens, P.A., 525 F.3d 1107, 1110-14 (11th
Cir. 2008), is premature at this stage of the proceeding. We
express no opinion on the matter. We also note that our
holding today makes any discussion of the appropriate
measure of damages under the statute premature. We there-
fore pretermit any discussion of the matter.
26 No. 10-3243
Conclusion
We hold that the DPPA’s general rule of non-disclosure
of personal information held in motor vehicle records
and its overarching purpose of privacy protection must
inform a proper understanding of the other provisions
of the statute. Accordingly, we hold that any disclosure
must comply with those legitimate uses of information
identified in the statutory exceptions. With these
principles in mind, we hold that the Village’s placement
of protected personal information in view of the public
constituted a disclosure regulated by the statute,
regardless of whether Mr. Senne can establish that
anyone actually viewed it. Furthermore, because
Mr. Senne has articulated a plausible claim that the Vil-
lage’s actions failed to fulfill its statutory duties, the
case should not have been dismissed.
R EVERSED and R EMANDED
P OSNER, Circuit Judge, dissenting. If federal courts
followed the well-known precept of medical ethics
primum non nocere (first, do no harm), the Village
of Palatine, the defendant in this suit under the Driver’s
Privacy Protection Act, 18 U.S.C. §§ 2721 et seq., would
No. 10-3243 27
win; and likewise if the Act were interpreted literally.
I am not a fan of literal interpretation. But it is the
proper default rule when it has reasonable consequences
and there is no indication that the legislature stumbled
in trying to translate legislative purpose into words.
The majority’s free interpretation of the Act is not
needed to avoid absurd results or achieve the legisla-
ture’s purpose; it is unlikely to do any good; it is bound
to do harm.
By incorporation of the definition of “personal informa-
tion” found in 18 U.S.C. § 2725(3)—“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 informa-
tion”—the Driver’s Privacy Protection Act forbids “a
State department of motor vehicles, and any officer,
employee, or contractor thereof . . . [to] knowingly dis-
close or otherwise make available to any person or
entity . . . personal information . . . about any individual
obtained by the department in connection with a motor
vehicle record, except as provided in subsection (b).”
§ 2721(a)(1). The Illinois Department of Motor Vehicles,
and its employees and contractors, are not defendants
in this suit, but “an authorized recipient of personal
information” from the department is—the municipal
police department that ticketed the plaintiff; and it
“may resell or redisclose personal information only
for a use permitted under subsection (b).” § 2721(c).
28 No. 10-3243
So one goes to subsection (b) and finds in (b)(4) that
“disclosure” of personal information is permitted “for
use in connection with any civil, criminal, administra-
tive, 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 enforce-
ment of judgments and orders, or pursuant to an order
of a Federal, State, or local court.” A proceeding for the
imposition of a parking fine is an administrative pro-
ceeding, and personal information on the parking
ticket placed on the windshield of the alleged violator’s
vehicle is “for use in connection with” an “admin-
istrative . . . proceeding” in a “local court,” and specifically
the “service of process” phase of the proceeding. The
ticket is process; placing it on the windshield is the con-
ventional method of serving process for parking viola-
tions; and so a literal interpretation is that the police
can place personal information on the ticket.
There is no indication that without being able to
express its intention in words Congress intended to
forbid police to place personal information on a parking
ticket. The Act does not limit disclosure that falls
within one of its exceptions to what is “reasonable” or
“necessary,” or authorize judges to impose such a re-
quirement. The concern that gave rise to the statute
was with stalkers who went to motor vehicle bureaus to
obtain the home addresses of their intended victims,
more than 30 states having made such information avail-
able to members of the public for a small fee as a means
No. 10-3243 29
of enhancing state revenues. A television actress was
murdered in 1989 by a stalker whose private investigator
had lawfully obtained her unlisted address from the
California Department of Motor Vehicles. That unfor-
tunate incident was a catalyst of the Driver’s Privacy
Protection Act. Taylor v. Acxiom Corp., 612 F.3d 325, 336
and n. 9 (5th Cir. 2010); Pichler v. UNITE, 542 F.3d 380,
400 (3d Cir. 2008) (dissenting opinion).
Palatine’s printing of drivers’ names and addresses on
parking tickets that are then placed on violators’ wind-
shields does not encourage or facilitate stalking. Only
with difficulty can one imagine a stalker who, noticing
a woman he’d like to stalk get into her car and drive
off, follows her and when she parks lurks behind her car
in the hope that it will be ticketed and that if that
happens he’ll be able without being observed to peek at
the ticket and discover the owner’s name and address.
Has this ever happened? The plaintiff’s lawyer admitted
at oral argument never having heard of such a thing. A
far more plausible strategy for a stalker who had come
across his intended victim’s vehicle would be to follow
her home, without having to rely on her parking illegally
and the police coming along and writing a ticket rich
in personal information.
Why bend the statute to solve a nonexistent prob-
lem? Stalkers are not the only invaders of privacy, but
who are the non-stalkers who peek at tickets on wind-
shields and write down the information they find
there? Are there any such? Is it wise to dislocate a
statute in order to solve a problem that so far as any-
30 No. 10-3243
one knows or can guess has never arisen and will
never arise?
The majority opinion regards the placing of the name
and address of the owner of the ticketed vehicle on the
parking ticket as a gratuitous act that, harmless or not,
serves no law enforcement purpose and therefore can’t
be for a permitted use. Many, perhaps most, police
don’t have time to place personal information on a
parking ticket, because they would have to look up the
information in the database of the motor vehicle bureau
and write it on the ticket. Yet placing the information
on the ticket serves a modest error-correction function,
which presumably is why some police departments
do place such information on parking tickets. Suppose
the name or address of the vehicle’s owner is listed in-
correctly in the motor vehicle bureau’s database, or the
police copy the wrong name or address in writing the
ticket. Or suppose the name and address are correct but
the date of birth, the weight, or the height listed on the
ticket is not that of the named person, thus indicating
that there has been a mistake. The discovery of an error
in the ticket may impel the owner to respond to the
summons by informing the court that he is not the
person named in it or that his true address and other
personal information are different from what is writ-
ten on the ticket; for he will worry that unless the
mistakes are corrected he won’t receive any future
communications from the motor vehicle bureau and
other state and local agencies that rely on it for personal
information.
No. 10-3243 31
This perhaps is small beer but on the other side is a
nonexistent risk, whether of stalking or of some other
harmful breach of privacy. And even if listing height
and weight on a ticket is gratuitous, the majority’s deci-
sion is apt to entangle the courts in closer questions of
the legitimacy of including particular personal informa-
tion on a parking ticket, questions that will generate
costly and time-consuming litigation and pointless
wealth transfers from taxpayers to violators of the
parking laws. The majority opinion does reserve the
possibility that it might be permissible to write the
owner’s name on the ticket. But it is a faint possibility,
since the recipient will know who the owner is—himself,
or a family member, or whomever he borrowed the
car from—and so the inclusion of his name won’t be
strictly necessary.
Because the statute does not place Palatine or any
other community on notice that including personal infor-
mation on a parking ticket is prohibited, every police
department in the Seventh Circuit that has done such a
thing within the four-year statute of limitation for private
suits (see 28 U.S.C. § 1658(a); Hurst v. State Farm Mutual
Auto Ins. Co., Civ. Action No. 10-1001-GMS, 2012 WL
426018, at *9 (D. Del. Feb. 9, 2012)) faces, as a result of
today’s decision, liability for “actual damages, but not
less than liquidated damages in the amount of $2,500.”
18 U.S.C. § 2724(b)(1). So little Palatine (its population
roughly one-fortieth that of Chicago) faces, in this class
action suit filed on behalf of everyone who has received a
parking ticket in the Village within the period of the
statute of limitations, a potential liability of some $80
32 No. 10-3243
million in liquidated damages—more than $1,000 per
resident.
The Village can obtain no succor from our decision in
Sterk v. Redbox Automated Retail, LLC, 672 F.3d 535, 538
(7th Cir. 2012), which held that a claim for liquidated
damages based on identical language in the Video Privacy
Protection Act, 18 U.S.C. § 2710, required proof of injury
in the form of an actual invasion of privacy. The
defendant in Sterk had failed in its statutory duty to
destroy lawfully obtained documents containing per-
sonal information, but there was no indication that any of
the documents had been disclosed to anyone before
they were destroyed. In contrast, personal information
is “disclosed” in a letter even if, because the letter was
destroyed en route to the addressee, no invasion of
privacy results. Similarly, if a city posted parking viola-
tors’ names and addresses on a publicly accessible web-
site, the act of posting would be disclosure even if
no one visited the website. So I don’t quarrel with the
statement in the majority opinion that publicly posting
information is “disclosure” whether or not anyone
ever reads it or is likely to do so. But this just under-
scores the magnitude of the liability that the opinion
fixes on Palatine.
The opinion states that it is “premature” to think about
damages at this point. That is short sighted. Before
creating a new cause of action, a court should consider
the consequences.
And who will benefit most from the class actions that the
majority opinion endorses and invites? Why, scofflaws,
No. 10-3243 33
of course, because they have the most tickets, each now
worth $2,500. From now until the statute is amended
(unless today’s decision is reversed by the Supreme
Court first), only a sucker would park legally in the
Village of Palatine.
F LAUM, Circuit Judge, with whom E ASTERBROOK , Chief
Judge, and P OSNER and SYKES, Circuit Judges, join, dis-
senting. Although I agree with the majority’s conclusion
that the posting of personal information on a parking
citation constitutes a disclosure within the meaning of
the Driver’s Privacy Protection Act (“DPPA”), 18 U.S.C.
§ 2721, et seq., I am unable to agree with the majority’s
conclusion that permissible disclosures are limited to
such information as is necessary to effectuate the pur-
poses of the statutory exceptions. Neither the text nor
the legislative history conveys Congress’s intent to limit
the information that may be disclosed in connection
with a particular exception.
The present dispute turns on the meaning of the DPPA,
or, more specifically, on the meaning of the exceptions
that permit the disclosure of personal information. Our
goal is to ascertain Congress’s purpose in enacting the
legislation. See, e.g., Milner v. Dep’t of Navy, ___ U.S. ___,
34 No. 10-3243
131 S. Ct. 1259, 1264 (2011) (citing Park ‘N Fly, Inc. v. Dollar
Park & Fly, Inc., 469 U.S. 189, 194 (1985)); United States v.
N.E. Rosenblum Truck Lines, Inc., 315 U.S. 50, 53 (1942).
Generally, the plain language of a statute is the best
evidence of legislative intent. United States v. Clintwood
Elkhorn Mining Co., 553 U.S. 1, 11 (2008) (“The strong
presumption that the plain language of the statute ex-
presses congressional intent is rebutted only in rare
and exceptional circumstances.” (quotation marks and
alterations omitted)); United States v. Ye, 588 F.3d 411,
414-15 (7th Cir. 2009). In looking to the language of the
DPPA, we are mindful that statutory interpretation is a
“holistic endeavor,” which requires courts to look at
words and their meaning not in isolation but in the
context of the statutory scheme in which they appear.
Koons Buick Pontiac GMC, Inc. v. Nigh, 543 U.S. 50, 60 (2004)
(quoting United Sav. Ass’n of Tex. v. Timbers of Inwood
Forest Assocs., 484 U.S. 365, 371 (1988)).
Title 18, Section 2721(b), of the United States Code, lists
fourteen “permissible uses” of personal information
that do not violate the DPPA. Relevant to the practice
challenged in this case, Section 2721(b) provides: “Personal
information referred to in subsection (a) . . . may be
disclosed . . . (4) [f]or use in connection with any civil,
criminal, administrative, or arbitral proceeding in any . . .
court or agency or before any self-regulatory body, in-
cluding the service of process . . . .” Under Illinois law
and by municipal ordinance, the parking citation that
Senne received constitutes service of legal process. See
625 ILCS 5/11-208.3(b)(3) (authorizing municipalities to
No. 10-3243 35
serve process for parking violations by means of affixing
the notice to the vehicle); Village of Palatine Ordinance
2-707(b)(3) (service of complaint in administrative pro-
ceedings may be effected by affixing complaint to
the property where the violation is found). Indeed, the
majority recognizes that the parking citation constitutes
service of process. See Op. at 24 & n.18.1 In my view,
because a municipality falls outside the DPPA’s proscrip-
tions when it discloses personal information as part
of serving legal process, the Village’s disclosure of infor-
mation in the parking citation does not violate the
DPPA. The DPPA does not ask whether the service of
process reveals no more information than necessary to
effect service, and so neither should we.
In determining that subsection 2721(b)(4) permits the
disclosure of all personal information, not just that which
is reasonably necessary, I adhere to the basic canon of
statutory interpretation of giving meaning to every
word. See Duncan v. Walker, 533 U.S. 167, 174 (2001). The
1
The en banc majority also determines that the exception found
in subsection 2721(b)(1) applies because the issuance of the
citation is one of the functions of the Village’s police depart-
ment. See Op. at 24. The initial panel majority found it unneces-
sary to reach this issue after concluding that the personal
information was properly disclosed under the (b)(4) exception.
See Senne v. Village of Palatine, Ill., 645 F.3d 919, 923-24 (7th
Cir. 2011) (majority opinion). There is similarly no need to
address the (b)(1) exception here since the disputed phrase
“for use” applies in the same way to both exceptions.
36 No. 10-3243
words “for use,” which introduce each subsection of
Section 2721(b)’s list of exceptions, indicate that personal
information can be disclosed when it is used for one of
the enumerated purposes. This interpretation does not
read “for use” out of the DPPA, nor does it limit the
phrase’s function to linking grammatically the “may be
disclosed” language in the introductory paragraph
of Section 2721(b) to the purposes and recipients listed
in the subsections. The express terms of the statute
permit the disclosure of information when one of Sec-
tion 2721(b)’s exceptions applies. All of the information
to which Senne objects was used in the parking citation,
and its disclosure was therefore proper under subsec-
tion 2721(b)(4).
The majority interprets “for use” as expressing a
limiting principle for what information may be
disclosed under a particular exception. By restricting the
scope of the exceptions, the majority essentially inserts a
qualifier, such as “appropriate” or “reasonable” or “neces-
sary,” into the phrase “for use.” Subsection 2721(a)(1)
of the DPPA prohibits states from disclosing personal
information “except as provided in subsection (b) of this
section,” but the DPPA does not contain any language
that limits disclosure to information that complies with
the purposes of Section 2721(b) or that is actually used
to carry out an enumerated purpose. Some of the excep-
tions listed in Section 2721(b) limit how the informa-
tion can be used, but subsection 2721(b)(4)’s exception
for service of process does not contain any words of
No. 10-3243 37
limitation.2 Thus, the DPPA’s text makes clear that Con-
gress intended to leave states with considerable leeway.
Congress could have included a qualifier for dis-
closures, but it did not do so. Congress of course remains
at liberty to amend the statute, and, for the policy
reasons advanced by the majority, it may well see the
need to do so. However, the current text does not
support the majority’s view.
The majority’s interpretation of “for use” is informed
by its understanding of Congress’s intent in enacting the
DPPA. The majority asserts that “the statute’s purpose
of safeguarding information for security and safety rea-
sons, contained in the general prohibition against dis-
closure” would be “frustrated” if “for use” were con-
strued to allow any information to be disclosed as part
of an exception. Op. at 18. But the legislative history
does not convey an intent to eliminate any and all
dangers that can be traced back to the disclosure of in-
formation from motor vehicle records.
The legislative history reveals that Congress enacted
the DPPA as a crime-fighting measure in response
to specific concerns. The murder of actress Rebecca
Schaeffer by a stalker who acquired her address from a
2
Similarly, Congress limited permissible disclosures by
requiring express consent for the disclosure of “highly restricted
personal information.” See 18 U.S.C. § 2721(a)(2). Notably,
although Congress applied this restriction to ten of Section
2721(b)’s exceptions, Congress did not apply this heightened
restriction to subsection 2721(b)(4).
38 No. 10-3243
motor vehicle department is widely recognized as the
catalyst for the DPPA. See Taylor v. Acxiom Corp., 612
F.3d 325, 336 (5th Cir. 2010). Similarly, Senator Barbara
Boxer, one of the DPPA’s sponsors, emphasized that “[i]n
34 States, someone can walk into a State Motor Vehicle
Department with your license plate number and a few
dollars and walk out with your name and home ad-
dress.” 139 Cong. Rec. S15,762 (daily ed. Nov. 16, 1993); see
also 140 Cong. Rec. H2522 (daily ed. Apr. 20, 1994) (state-
ment of Rep. Moran, a sponsor of the DPPA) (“A total
stranger can obtain personal information about you
without knowing anything more about you than your
license plate number and you are helpless to stop it.”).
The legislative history also contains statements about
the need to protect domestic violence victims and
law enforcement officers from retaliatory attacks. See
Op. at 20-21 & nn. 14-15. Rather than evincing the intent
to guard against all imaginable dangers, the legislative
history emphasizes Congress’s intent to prevent the
specific danger that arises when individuals are able
to obtain personal information upon request from state
motor vehicle records. See, e.g., 139 Cong. Rec. S15,765
(daily ed. Nov. 16, 1993) (statement of Sen. Biden) (“This
amendment closes a loophole in the law that permits
stalkers to obtain—on demand—private, personal infor-
mation about their potential victims. . . . Thus, potential
criminals are able to obtain private, personal informa-
tion about their victims simply by making a request.”).
The majority is concerned that interpreting “for use” to
allow the disclosure of information that is not strictly
No. 10-3243 39
necessary for the exception creates safety risks, such as
a stalker stumbling upon a parking citation containing
information about his or her target, or a miscreant
selecting a target based on the information provided in
a citation. While recognizing the possibility of such
chance crimes, I conclude that these crimes were not
the types of crimes that motivated Congress to enact the
DPPA. Though individual legislators might well favor
placing greater restrictions on what state motor vehicle
departments can disclose, it is not evident that Congress
as a whole would wish to do so. It is not uncommon
for Congress, out of respect for our federal system, to
limit its response to legitimate policy challenges—even
those with apparent (and perhaps appealing) solutions.
Congress may have decided not to qualify “for use” so
as to limit the exercise of judicial discretion. Under my
interpretation of “for use,” the role of the judiciary is
confined to determining how the public agency was
using the information. If the agency was using the infor-
mation in connection with one of Section 2721(b)’s permis-
sible uses, then the agency’s disclosure of information
is valid; otherwise, the agency’s disclosure violates
the DPPA. This categorical approach may end up over-
or under-inclusive at times, but it has the virtue of
being straightforward, predictable, and less costly to
administer. By contrast, under the majority’s interpreta-
tion of “for use,” the judiciary is tasked with deter-
mining what pieces of information are needed in order
to carry out the purpose of the applicable exception. The
statute offers no guidance to the judges, lawyers, and
40 No. 10-3243
public actors who will inevitably struggle to distinguish
between necessary and extraneous information. By
calling on judges to ban seemingly unnecessary disclo-
sures, the majority makes the statute less straight-
forward, less predictable, and more costly to administer
(due to the litigation expenses associated with deter-
mining the propriety or necessity of each disclosure).
The majority’s interpretation of “for use” thereby
exposes municipalities to substantial penalties (possibly
$80 million for Palatine) for failing to predict what dis-
closures a judge will find to be appropriate. It is not
our responsibility to evaluate the two approaches and
determine which constitutes better policy; rather, our
responsibility is to determ ine which approach
Congress incorporated into the DPPA. See Pac. Operators
Offshore, LLP v. Valladolid, ___ U.S. ___, 132 S. Ct. 680, 690
(2012) (“[I]f Congress’ coverage decisions are mistaken
as a matter of policy, it is for Congress to change them.
We should not legislate for them.” (quoting Herb’s
Welding, Inc. v. Gray, 470 U.S. 414, 427 (1985))). Far from
frustrating Congress’s intent, my interpretation defers
to the intent expressed by Congress when it included
the phrase “for use” without any qualifier or any
limiting guidelines.
Because the text contains no qualifier, the majority
struggles to articulate the substance of the qualifier that
it reads into the phrase “for use.” In certain parts
of its opinion, the majority describes the standard for
evaluating disclosures in broad, conclusory terms that
express policy objectives but shed little light on how
No. 10-3243 41
to distinguish proper from improper disclosures. See, e.g.,
Op. at 17 (“The words ‘[f]or use’ . . . contain the neces-
sary limiting principle that preserves the force of the
general prohibition while permitting the disclosures
compatible with that prohibition.”); Op. at 23 (“Congress
did not intend that the statutory exceptions be divorced,
logically or practically, from the purpose of the stat-
ute.”). In other parts of its opinion, the majority states
that any disclosure “must be compatible with the
purpose of the exception,” Op. at 18, must “effect[]
a particular purpose exempted by the Act,” Op. at 19,
and “must comply with those legitimate uses of infor-
mation identified in the statutory exceptions,” Op. at 26.
This language appears slightly more concrete, but it
still falls short of providing actual guidance. Rea-
sonable minds will disagree as to what disclosures are
compatible with the purpose of the exception, while
arguably extraneous disclosures might still be viewed
as compatible. The majority defines “for use” as permit-
ting “an authorized recipient” to “disclose the informa-
tion only in a manner that does not exceed the scope of
the authorized statutory exception,” Op. at 18 (empha-
sis in original), but the majority does not provide any
definitions, tests, or tools for determining the scope.
By construing “for use” to contain a limiting principle
without articulating its substance, the majority effec-
tively calls on judges to determine whether a particular
disclosure is “appropriate” or “reasonable” or “necessary”
for carrying out the exception. The majority states that
it does not read “use” as signifying “necessary use,” see
42 No. 10-3243
Op. at 19 n.12, but it provides no alternative definition.
The majority also asserts that it does not read a “best
practices” requirement into the statute, see id., but it
does not explain what distinguishes “legitimate” or
“compatible” uses, which are apparently mandated by
the statute, from best practices, which are not. The
dissent to the initial panel opinion had interpreted
the DPPA as limiting disclosures to “the personal infor-
mation reasonably necessary to effectuate the govern-
mental purpose set forth in the exception.” Senne v. Village
of Palatine, Ill., 645 F.3d 919, 926 (7th Cir. 2011) (Ripple, J.,
dissenting); see also id. (“[T]he information disclosed
under an exception must have a reasonable relationship
to the purpose of the exception.”). Though the en banc
opinion does not adopt the “reasonably necessary” stan-
dard, it supplies no clear standard in its place.
Finally, certain parts of the majority’s opinion define
“for use” as requiring that “the disclosed information
actually must be used for the purpose stated in the excep-
tion.” Op. at 25 (emphasis added); see also Op. at 17-18
(“[T]hat language means that the actual information
disclosed—i.e., the disclosure as it existed in fact—must
be information that is used for the identified purpose.”
(emphasis in original)); Op. at 24 (“[T]he complaint does
put in issue whether all of the disclosed information
actually was used in effectuating either of these purposes.”
(emphasis in original)). This approach does help judges
by allowing them to evaluate ex post whether the infor-
mation was actually used to carry out the purpose of
the exception. This approach does not, however, help
No. 10-3243 43
municipalities to determine ex ante whether a particular
disclosure violates the DPPA. The determination of
what information will actually be used to carry out an
exception cannot always be made in advance. 3 Further,
as Judge Posner discusses, there are hypothetical
uses for all of the information disclosed by Palatine.
Municipalities might seek to disclose more information
than strictly necessary to account for the risk that the
core information is erroneous or outdated.
The text of the DPPA simply does not contain the
“actual use” limitation that the majority reads into it. Cf.
Howard v. Criminal Info. Servs., 654 F.3d 887, 892 (9th Cir.
2011) (“There is . . . no problem with Defendants
obtaining the personal information for potential future
use, even if they may never use it. The DPPA does not
contain a temporal requirement for when the informa-
tion obtained must be used for the permitted purpose.
Nor is there a requirement that once the information
is obtained for a permitted purpose that it actually be
used at all. The DPPA only requires that Defendants
obtained the information for a permitted purpose.”). In
conflict with Congress’s intent to preserve the ability
of law enforcement and municipalities to carry out their
functions, the majority’s interpretation opens municipali-
3
Although the majority insists that permissible disclosures
are not limited to those that are “necessary” to effectuate the
exception, see Op. at 19 n.12, a “necessary” standard may be
the only way to determine in advance what information will
ultimately be used.
44 No. 10-3243
ties up to substantial liability for incorrectly predicting
exactly what information will be used in the course
of carrying out an exception.
Contrary to the view of my colleagues in the majority,
I do not construe Section 2721(b) as permitting only
the disclosure of information that is necessary to carry
out the purpose of an exception. Congress has the author-
ity to amend the DPPA to restrict disclosures to those
that are “for a necessary use” or “for an appropriate
use,” but the existing text and legislative history do not
evince Congress’s intent to do so. Therefore, while
I concur with the majority’s conclusion that the Village’s
action constitutes a disclosure, I respectfully dissent
from its conclusion that the disclosure violates the
DPPA. In my judgment, because Senne’s information
was used in the parking citation and the citation consti-
tutes service of process, the Village’s disclosure does not
violate the DPPA.
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