Untitled Texas Attorney General Opinion ( 2010 )

ATTORNEY GENERAL OF TEXAS
GREG ABBOTT
August 23, 2010
Mr. Steven C. McCraw, Director Opinion No. GA-0789
Texas Department of Public Safety
5805 North Lamar Boulevard Re: Whether a county's disclosure on its website of
Austin, Texas 78752-4422 driver's license photographs received from the
Department of Public Safety would violate the Motor
Vehicle Records Disclosure Act or the federal
Driver's Privacy Protection Act (RQ-0799-GA)
Dear Mr. McCraw:
Your predecessor, the Interim Director of the Texas Department of Public Safety (the
"DPS"), inquired whether Dallas County's plan to post driver's license photographs on a county
website would violate the state or federal statutes designed to protect privacy in driver's license
records.' See 18 U.S.C.A. §§ 2721-2725 (West 2000 & Supp. 2009) (Federal Driver's Privacy
Protection Act), TEx. TRANSP. CODE ANN. §§ 730.001-.016 (Vernon 1999 & Supp. 2009) (Texas
Motor Vehicle Records Disclosure Act). Dallas County officials have requested driver's license
photographs from the DPS to post on the Wanted Site of the county's website. 2 See Request Letter
at 1. This site provides information on individuals who owe large amounts of traffic fines and fees
to Dallas County. See Wanted Site. The stated purpose of the website is to reduce the number of
outstanding citations in the county. See Request Letter at 1.
The DPS is concerned that the proposed use of the photos might violate the Federal Driver's
Privacy Protection Act (the "DPPA") and the Texas Motor Vehicle Records Disclosure Act (the
"Texas Act"), in particular the provisions on redisclosure. See id. at 1-3; 18 U.S.C.A. § 272 I (c)
(West Supp. 2009); TEx. TRANSP. CODE ANN. § 730.0 13 (Vernon Supp. 2009). The DPPA restricts
the disclosure of "personal information" or "highly restricted personal information" obtained by a
state department of motor vehicles in connection with a motor vehicle record, with exceptions for
lRequest Letter at I (available at http://www.texasattorneygeneral.gov).
'Dallas Connty Wanted and Delinquent Offender Search Service, available at http://www.dallasconnty
.orgldcwantedsearch/ (last visited Aug. 11,2010) [hereinafter Wanted Site].
Mr. Steven C. McCraw - Page 2 (GA-0789)
certain permissible uses. 3 See 18 V.S.C.A. § 2721(a)(1)-(2) (West Supp. 2009). "'[H]ighly
restricted personal information'" is "an individual's photograph or image, social security number,
[and] medical or disability information." !d. § 2725(4). '" [P]ersonal information'" is "information
that identifies an individual, including an individual's photograph." See id. § 2725(3). Both "highly
restricted personal infortnation" and "personal information" may be disclosed "[±Jor use by any
.government agency, including any court or law enforcement agency, in carrying out its functions."
Id. § 2721(b).
The Texas Act was adopted to implement the DPPA. See TEx. TRANSP. CODE ANN.
§ 730.002 (Vernon 1999). Subjectto exceptions in Transportation Code sections 730.005-.007, "an
agency may not disclose personal information about any person obtained by the agency in connection
with a motor vehicle record." Id. § 730.004 (Vernon SUpp. 2009). The DPS, which issues driver's
licenses and maintains driver's license records, is an "agency" within chapter 730: Section 730.007
does not, as a general matter, permit disclosure ofa person's photograph. See id. § 730.007(a)-(b)
(pennitting an agency to disclose an individual's name and address, birth date, and driver's license
number for various specific purposes, such as use in connection with motor vehicle safety).
However, section 730.007(c) provides that section 730.007 does not prohibit the disclosure of a
person's photographic image to "a law enforcement agency or a criminal justice agency for an
official purpose." Id. § 730.007(c)(I)(A). Thus, the DPS may, but is not required to, disclose
driver's license photographs to a law enforcement agency, such as a sheriffs office, for an official
purpose.
The restrictions on redisclosure of personal information in the Texas Act are found in
Transportation Code section 730.01\ which provides as follows:
(a) An authorized recipient of personal information may not resell
or redisclose the personal information in the identical or a
substantially identical format the personal information was disclosed
to the recipient by the applicable agency.
(b) An authorized recipient of personal information may resell or
redisclose the information only for a use pennitted under Section
730.007.
(c) Any authorized recipient who resells or rediscloses personal
information obtained from an agency shall be required by that agency
to:
)"'[M]otor vehicle record'" is defined as "any record that pertains to a motor vehicle operator's permit, motor
vehicle title, motor vehicle registration, or identification card issued by a department of motor vehicles." 18 U.S.C.A.
§ 2725(1) (West 2000).
4The DPS is also subjectto the DPPA. See 18 U.S.C.A. § 2721(a) (West Supp. 2009); Tex. Att'y Gen. Op. No.
JC-0499 (2002) at l.
Mr. Steven C. McCraw - Page 3 (GA-0789)
(1) maintain for a period of not less than five years records as
to any person or entity receiving that information and the permitted
use for which it was obtained; and
(2) provide copies of those records to the agency on request.
ld. § 730.013(a)-(c). Subsections 730.0l3(b) and (c) reflect similar provisions in the DPPA. See
18 U.S.C.A. § 2721 (c) (West Supp. 2009) (limiting an authorized recipient's resale or redisclosure
of personal information and requiring record-keeping as to recipients of such information). s
The request letter suggests that posting driver's license photographs on a public website
would be a redisclosure of personal information in an "identical or substantially identical format"
in violation of section 730.0l3(a). See Request Letter at 2; TEx. TRANSP. CODE ANN. § 730.0l3(a)
(Vernon Supp. 2009). It notes that section 730.0l3(b) would permit Dallas County to "redisclose
the information only for a use permitted under Section 730.007" and that the county would have to
keep the records of redisclosures required by title 18, section 2721 (c). See Request Letter at 2;
18 U.S.C.A. § 272 I (c) (West Supp. 2009); TEx. TRANSP. CODE ANN. § 730.0l3(b)-(c) (Vernon
Supp. 2009). The DPS raises the additional concern that driver's license photos displayed over the
website could be captured and redisclosed by an individual without compliance with the DPPA and
Transportation Code chapter 730. 6 See Request Letter at 2-3.
We consider how the Texas Act balances the limits on redisclosure of personal information
with the law enforcement agency's authority to use such information for an official purpose. Posting
driver's license photographs on a publicly available website would seem to have the effect of
redisclosing the photographs to anyone who views the site.' Presumably, most members of the
general public viewing such a site would not be making use of the photographs "for a use permitted
under Section 730.007." TEx. TRANSP. CODE ANN. § 730.0l3(b) (Vernon Supp. 2009).
We also note that section 730.0 l3(c) requires a law enforcement agency to maintain for "not
less than five years records as to any person or entity receiving that information and the permitted
use for which it was obtained." ld. § 730.013(c)(I). This requirement would impose practical
'The federal act does not, however, inclnde any provision comparable to subsection 73 0.0 13(a), which prohibits
an authorized recipient of personal information from reselling or redisclosing the information "in the identical or a
substantially identical format" it was disclosed to the recipient by the applicable agency. Compare TEX. TRANsp. CODE
ANN. § 730.013(a) (Vernon Supp. 2009), with 18 U.S.C.A. § 2721(c) (West Supp. 2009).
'You ask whether Dallas County would be responsible if this happened. Request Letter at 3. The answer to
this question depends on all the relevant facts as well as theories ofliability relied upon. Questions of fact cannot be
resolved in an attorney general opinion. See Tex. Att'y Gen. Op. No. GA-0430 (2006) at 4.
'Without more information, we cannot determine whether such redisclosure would be "in the identical or a
substantially identical format" as the photographs were received by DPS, in violation of Texas Transportation Code
section 730.013(a). TEx. TRANSP. CODE ANN. § 730.013(b) (Vernon Supp. 2009).
Mr. Steven C. McCraw - Page 4 (GA-07S9)
difficulties on any plan to make driver's license photographs or other personal information available
to the general public at an online site.
There is scant authority concerning the redisclosure of personal information by a law
enforcement agency, but one case finds that a law enforcement agency may redisclose the
information to the media for official purposes. See McQuirter v. City of Montgomery, No.
2:07-CV -234-MEF, 200S WL401360 (M.D. Ala. Feb 12, 200S). A lawsuit was brought under the
DPPA by a woman whose name and driver's license photograph were mistakenly used in a police
department press release on arrests made in a prostitution sting. See id. at *1. The court stated that
"the DPPA was not intended to restrict or hinder law enforcement and crime prevention strategies
even if those strategies might include releasing personal information to the general public." Id at
*5 (citing Parus v. Kroeplin, 402 F. Supp. 2d 999, 1006 (W. D. Wis. 2005). It determined that
dissemination of the press release to media outlets was "within the limits of permissible law
enforcement conduct" under IS V.S.C.A. § 2721(b)(I). McQuirter, 200S WL401360, at *6. There
is thus some authority for the proposition that disclosing a driver's license photograph to the public
for an official law enforcement purpose is not a prohibited redisclosure of that personal information.
No Texas court has addressed whether publication of driver's license photos by a law
enforcement agency would be aredisclosure in violation of the DPPA or the Texas Act. Nor has any
court addressed publication of such photos online, which may lead to unlimited redisclosures. A
Texas court might determine that the Dallas County Sheriffptoposes a redisclosure of photographs
that would be subject to the restrictions on redisclosure of the Texas Act and the DPPA. In the
alternative, it might determine, as did the federal court in McQuirter, that a particular disclosure of
a driver's license photo was for an official law enforcement purpose and therefore was not a
redisclosure subject to the applicable statutory restrictions. Given the lack of Texas authority and
the minimal federal authority on the issue raised by the DPS, we cannot state as a matter of law
whether the online publication of photos proposed by Dallas County would be permissible or would
constitute an unauthorized redisclosure under the state or federal act.
Mr. Steven C. McCraw - Page 5 (GA-0789)
SUMMARY
The Federal Driver's Privacy Protection Act and the Texas
Motor Vehicle Records Disclosure Act do not prohibit the
Department of Public Safety from disclosing driver's license
photographs to the Dallas County Sherifffor use in carrying out law
enforcement purposes. We cannot state as a matter oflaw whether
the publication of such photos online would be permissible or would
constitute an unauthorized redisclosure under the state or federal act.
DANIEL T. HODGE
First Assistant Attorney General
NANCY S. FULLER
Chair, Opinion Committee
Susan L. Garrison
Assistant Attorney General, Opinion Committee