PENNSYLVANIA RECORD

A three-judge state appellate court panel has affirmed a decision by the Pennsylvania

Office of Open Records to deny driver’s license information to an attorney for a civil rights organization who was attempting to conduct research in light of the commonwealth’s controversial voter ID law.

In its Jan. 14 opinion, the Commonwealth Court panel determined that the OOR was correct to deny a Right-to-Know request by the Advancement Project and staff attorney Marian K. Schneider, which sought personal information contained within Pennsylvania driver’s licenses and non-driver photo ID cards that had been issued within the last four years.

Schneider had initially sought the name, address, date of birth and social security number of each person issued a driver’s license or non-driver photo identification card as a request under the state’s Right-to-Know Law to the Pennsylvania Department of Transportation, which issues state ID cards.

The attorney had intended to compare the information to the list of registered voters in the Pennsylvania Department of State’s Statewide Uniform Registry of Electors database.

Schneider looked to calculate the number of non-driver photo ID cards the commonwealth would have to issue under the recent passage of Pennsylvania’s voter ID law, which requires voters to show photo identification in order to cast a ballot at the polls.

PennDOT denied Schneider’s request in late September 2011, arguing that the release of such information was prohibited by state law.

The lawyer appealed the decision to the Office of Open Records, narrowing her request to only include the name, address, date of birth and expiration date of each identification card, no longer seeking the Social Security number.

The OOR, however, subsequently upheld PennDOT’s denial, ruling that the information Schneider requested was still exempt from disclosure.

The OOR cited Section 6114 of the Pennsylvania Motor Vehicle Code, which makes it unlawful for PennDOT to “disclose records or reports which relate to the driving record of any person.”

The OOR also cited the federal Privacy Act, which prohibits the release of such information.

In her appeal, Schneider argued that the OOR erred in holding that information on a driver’s license is a type of “driving record” that must be kept confidential under the vehicle code; that information on non-driver photo IDs does not constitute a “driving record” and thus must be disclosed; that the federal Privacy Act permits the disclosure of the sought-out information because it would be used for research purposes; and lastly, that simply because PennDOT’s database contains Social Security numbers does not prevent the disclosure of otherwise public information in that database.

The Commonwealth Court panel dismissed Schneider’s first argument, agreeing with PennDOT that because the information the lawyer sought was contained on a driver’s license it is not to be disclosed.

“An individual’s authorization to operate a vehicle is a type of driving record and required to be kept confidential under Section 6114 of the Vehicle Code,” the judges wrote.

On Schneider’s second argument, that information on non-driver photo IDs cannot be considered a “driving” record because the cards are not driver’s licenses, the appellate judges disagreed with Schneider’s characterization, writing that the legislature intended that driver’s licenses and non-driver photo ID cards provide the same information and are to be used alike, with the exception of recognizing driving privileges.

“Not all non-driver photo IDs are issued because a driver’s license has been surrendered or suspended,” the opinion reads. “Nevertheless, it ‘relates to’ a driving record in all cases because it informs the third-party that the holder, for whatever reason, is not allowed to drive.

“Stated otherwise, it ‘relates to’ a driving record. The legislature intended to grant a broad exemption in Section 6114 of the Vehicle Code, and we agree with PennDOT’s construction and application of that provision.”

Thirdly, the panel disagreed with Schneider’s contention that the information she sought fell under an exemption within the federal Privacy Act that says the information “may” be released if the information is not to be published, and only used for research purposes.

Schneider said she would use the information to produce a statistical report relevant to the voter ID law.

PennDOT had countered that the Privacy Act permits disclosure only of anonymous birth dates correlated with the issuance and expiration dates of driver’s licenses and photo IDs, and also that Schneider’s reasons for her request were irrelevant since they were not presented within her original Right-to-Know request.

The judges agreed, writing that “because it is the requester’s burden to prove the right to an exception from non-disclosure, Schneider had to include her research explanation in her original request.”

Regardless, the judges also agreed with OOR and PennDOT that the records requested by Schneider are not technically public, and therefore are not to be disclosed.

“The only question to be decided here is whether the information is a public record, and that question has been answered in the negative,” the opinion states.

The opinion was penned by Commonwealth Court Judge Mary Hannah Leavitt. The other participating judges were P. Kevin Brobson and Patricia A. McCullough.

Commonwealth Court Judge Robert Simpson, who late last year issued a temporary injunction preventing the voter ID law from taking effect at the time of November’s general election, did not participate in the Schneider decision.

In his earlier ruling, Simpson, who was assigned to oversee the general appeal of the voter ID law, agreed to halt the measure from immediately taking effect, meaning voters did not need to show photo identification while voting in November.

However, Simpson declined to issue a permanent injunction, allowing implementation of the law to move forward after the general election.

The plaintiffs who are challenging the constitutionality of the law, which includes Schneider’s Advancement Project, are expected to continue fighting the law in court in 2013.