Request By:
Brenan J. Hall
4360 Brownsboro Road
Suite 212
Louisville, KY 40207Ed Roberts, Commissioner
Department of Administrative Services
and Custodian of Records
Transportation Cabinet
State Office Building
Frankfort, KY 40601J. Todd Shipp
Office of General Counsel
Transportation Cabinet
State Office Building
Frankfort, KY 40601
Opinion
Opinion By: Albert B. Chandler III, Attorney General; Amye L. Bensenhaver, Assistant Attorney General
Open Records Decision
The question presented in this appeal is whether the Transportation Cabinet properly relied on KRS 61.878(1)(k), incorporating 18 U.S.C. § 2721-25, popularly known as the Driver's Privacy Protection Act, into the Open Records Act, in denying Brenan J. Hall's request for "a list of registered Cadillac owners in Louisville, Ky." For the reasons that follow, we affirm the Cabinet's denial of the request.
In a response dated January 4, 2001, Commissioner Ed Roberts, Department of Administrative Services, advised Mr. Hall that the requested record was excluded from inspection by operation of KRS 61.878(1)(k) , authorizing nondisclosure of "all public records or information the disclosure of which is prohibited by federal law or regulation. " Commissioner Roberts did not cite the federal law or regulation authorizing nondisclosure. Shortly thereafter, Mr. Hall initiated this open records appeal.
In a supplemental response directed to this office following commencement of the appeal, Assistant General Counsel Todd Shipp elaborated on the Cabinet's position. He explained:
The Driver's Privacy Protection Act, 18 U.S.C. § 2721-25 prohibits states from using their drivers license and vehicle registration information for marketing purposes unless each person within the system chooses to participate in such marketing releases. Thus, it is prohibited by federal law to release the information he seeks. KRS 61.878(1)(k) specifically recognizes this and excludes information from release when prohibited by federal law.
Mr. Shipp noted, in closing, that release of the requested information would expose Cabinet employees to civil and criminal liability under federal law. Although its original response was procedurally deficient, 1 we find that the Driver's Privacy Protection Act bars release of the information Mr. Hall requested, and affirm the Cabinet's denial of his request.
The Driver's Privacy Protection Act "prohibits the release and use of certain personal information from state motor vehicle records." 18 U.S.C. § 2721 et seq . 'Personal information" is defined 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 disability information, but does not include information on vehicular accidents, driving violations, and driver's status." 18 U.S.C. § 2725 (3). 18 U.S.C. § 2721(a) states:
Except as provided in subsection (b), a state department of motor vehicles, and any officer, employee, or contractor, thereof, shall not knowingly disclose 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.
Subsection (b) establishes 14 categories of permissible use for personal information. State departments of motor vehicles, and officers, employees, or contractors thereof must disclose personal information to entities, both governmental and nongovernmental, "in connection with matters of motor vehicle or driver safety and theft . . . ," and may disclose the same information for the fourteen enumerated uses set forth in the statute.
Although the Driver's Privacy Protection Act gives access to motor vehicle information to government agencies, insurance companies, car manufacturers, and other specifically identified groups, it does not give access to investment brokers. State departments of motor vehicles which do not comply with the Act are subject to civil penalties of up to $ 5000 a day for each day of noncompliance. Clearly, the Transportation Cabinet risks the imposition of substantial penalties if it knowingly discloses personal information relating to Cadillac owners to Mr. Hall or other investment brokers.
The Driver's Privacy Protection Act is incorporated into Kentucky's Open Records Law by KRS 61.878(1)(k), which requires state agencies to withhold "all public records or information the disclosure of which is prohibited by federal law or regulation. " These provisions, operating in tandem, bar disclosure of the records identified in Mr. Hall's request. The federal act controls. 98-ORD-1; 99-ORD-150.
A party aggrieved by this decision may appeal it by initiating action in the appropriate circuit court pursuant to KRS 61.880(5) and KRS 61.882. Pursuant to KRS 61.880(3), the Attorney General should be notified of any action in circuit court, but should not be named as a party in that action or in any subsequent proceedings.
Footnotes
Footnotes
1 This deficiency lies in Commissioner Roberts' failure to cite the federal law prohibiting disclosure in his original response. Had reference been made to this law, along with a brief explanation of its application to the records withheld, the appeal before us might have been avoided.