Gallagly et al v. Sun-Times Media, LLC

Filing 80

MEMORANDUM OPINION AND ORDER Signed by the Honorable Harry D. Leinenweber on 9/29/2016:Mailed notice(wp, )

IN THE UNITED STATES DISTRICT COURT
FOR THE NORTHER DISTRICT OF ILLINOIS
EASTERN DIVISION

SCOTT DAHLSTROM, HUGH GALLAGLY,
PETER KELLY, ROBERT SHEA, and
EMMET WELCH,

Case No. 12 C 658

Plaintiffs,

Judge Harry D. Leinenweber

v.
SUN-TIMES MEDIA, LLC d/b/a THE
CHICAGO SUN-TIMES and Any Other
Known Corporate Name,

Defendants.

MEMORANDUM OPINION AND ORDER
I.

BACKGROUND

Five City of Chicago policemen brought this action against
the Sun-Times, a Chicago newspaper, for violation of the federal
Driver’s Privacy Protection Act (the “DPPA”), 18 U.S.C. § 2721,
et seq.

They allege that the Sun-Times, in violation of the

DPPA, obtained and published each Plaintiff’s birthdate, height,
weight, hair color and eye color from the Illinois Secretary of
State’s

motor

vehicle

records.

The

Sun-Times’

purpose

for

obtaining this information was to prove that the Chicago police
manipulated
involving

a

homicide

Mayor

(“Vanecko”).

Richard

investigation
M.

Daley’s

in

a

nephew,

high-profile
Richard

case

Vanecko

The police had conducted a line-up using the five

Plaintiff officers as fillers which the Sun-Times thought was

unfair because the five officers closely resembled Vanecko.
a

result,

a

witness

was

unable

to

identify

Vanecko

charges were subsequently dropped against him.

and

As
the

The Sun-Times

published the personal information along with photographs of the
Plaintiffs in both its paper and on-line editions to show that
the five Plaintiffs closely resembled Vanecko.
The Sun-Times moved to dismiss this case on two grounds:
that the information was not “personal information” within the
meaning of the DPPA, and the statute’s prohibition on obtaining
and disclosing personal information obtained from the driving
records violates the First Amendment.

In denying the Motion to

Dismiss, this Court determined the challenged information was
indeed personal information under the DPPA and the acquisition
and publication of the information violated the Act, and the act
as

applied

did

not

violate

the

Sun-Times’

First

Amendment

rights.
The Sun-Times was granted an interlocutory appeal to the
Seventh

Circuit

Court’s

ruling

Court
de

of

novo

Appeals.
and

The

concluded

Court
that

reviewed

the

this

information

obtained was personal information under the DPPA, and the SunTimes possessed no constitutional right, either to obtain the
officers’ personal information from the motor vehicle records,
or to publish the unlawfully obtained information.

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Thus the

Court affirmed this Court’s denial of the Sun-Times Motion to
Dismiss.
After
Complaint

remand,

the

together

Sun-Times

with

nine

filed

an

affirmative

Answer

to

defenses.

the
The

Plaintiffs have now moved for judgment on the pleadings in their
favor.

They have also moved to dismiss the nine affirmative

defenses,
Plaintiffs

or,

in

have

the

also

alternative,
moved

for

a

to

have

protective

them
order

stricken.
limiting

discovery to the issue of whether the Sun-Times violated the
DPPA.
II.
The
forward.

Plaintiffs’

DISCUSSION

position

on

their

Motion

is

straight

The Seventh Circuit opinion left nothing to be decided

other than whether to issue an injunction (which the Plaintiffs
seem to have dropped because they do not pray of an injunction
in this Motion for Judgment).

Specifically the Court held that

the “Sun-Times violated the Act when it knowingly obtained the
Officers’ personal details from the Illinois Secretary of State
and proceeded to publish them.”

Dahlstrom v. Sun-Times Media,

LLC, 777 F.3d 937, 946 (7th Cir. 2015).
stated

with

respect

to

the

balancing

The Court further
between

the

privacy

interest and a matter of public significance:
We conclude, however, that the balance in the instant
case tips in the opposite direction.
Although the
Sun-Time article relates to a matter of public
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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, and are thereof of less pressing public
concern than the threats of physical violence in
[Bartnicki v. Vopper, 532 U.S. 514, 536 (2001)].
Dahlstrom, 777 F.3d at 953.
However, the Court went on to say that there could be a
“scenario involving lesser privacy concerns or information of
greater public significance [where] the delicate balance might
tip in favor of disclosure.
The

Sun-Times,

on

Id.

the

other

hand

in

its

Answer

and

Affirmative Defenses, wants to reargue all of the same points
that

it

argued

amendment,

before

prior

the

restraint,

Seventh
due

Circuit,

process,

i.e.,

lack

of

first
privacy

interest, and public safety (some are couched in new terms:
rule of lenity and constitutional avoidance).

the

The Sun-Times, in

addition, raises champerty, maintenance, and Barratry contending
that the Fraternal Order of Police is financing the lawsuit,
providing

the

lawyers,

and

Plaintiffs are successful.

expects

some

remuneration

if

The Sun-Times also argues that it is

entitled to all reasonable inferences in its favor as the nonmovement

when

Fail-Safe

v.

assessing
A.O.

Smith

its

answer

Corp.,

674

2012).

- 4 -

and
F.3d

affirmative
889,

892

defenses.
(7th

Cir.

In

response

to

Plaintiffs’

three principal arguments.
Plaintiffs’

privacy

Motion,

the

Sun-Times

makes

First, with respect to balancing the

interests

versus

the

public

interest

in

disclosure of the manipulation of the Vanecko investigation, the
Answer and First Affirmative Defense require a different outcome
because it appears that at the time the Sun-Time requested and
obtained the Plaintiffs’ personal information, it only had the
names of the Plaintiffs and did not have the lineup photographs.
Thus, the personal information was not “cumulative” at the time
it

requested

the

personal

information

from

the

Secretary

of

State and balancing between the interests requires a different
outcome.

Second, the Sun-Times contends that it obtained the

personal information from the Secretary of State’s press office
rather than from the Department of Motor Vehicles (the “DMV”).
Thus

it

assessed

lacks
the

knowledge

DMV

records

of

whether

when

it

the

Secretary

disclosed

the

of

State

Plaintiffs’

personal information to it.
Third, the Sun-Times argues that obtaining and publishing
the personal information fits within the DPPA’s non-disclosure
exception with respect to matters in the interest of “public
safety.”
With respect to the Sun-Times’ first argument, there are
two different issues:

first, was the obtaining of the records

justified by the failure of the police department timely to turn
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over

the

line

up

photographs,

the

failure

of

which,

in

the

opinion of the Attorney General, constituted a violation of the
Freedom

of

Information

publication

of

the

Act

(“FOIA”),

personal

photographs,

and,

information,
allow

for

second,
three

was

days

different

the
after

obtaining

the

balancing

outcomes?

The Sun-Times’ best argument is that at the time it

obtained the Plaintiffs’ personal information it did not have
the line-up photographs to compare the fillers with Vanecko.

It

appears that the Seventh Circuit may well in fact recognize a
“balancing” test so that under certain circumstances the press
would

be

allowed

to

obtain

personal

information

while

investigating a matter of public significance and the invasion
of privacy was not particularly great.

Recall that there are

two separate acts here that arguably violate the DPPA.
obtaining
Although

the
the

information,

record

is

and,

silent

as

second,
to

the

its
date

First,

publication.
the

Sun-Times

obtained the personal information from the Secretary of State,
the

implication

access

to

the

from

the

line-up

personal information.

pleadings

photos

at

is

that

it

did

not

the

time

it

obtained

have
the

Thus a balancing could arguably come out

in favor of the Sun-Times for the act of obtaining the personal
information.

However, at the time of its publication, the Sun-

Times did have the photographs so that the personal information

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at the time of publication was, as the Seventh Circuit found,
“largely cumulative.”
The

Sun-Times

second

argument,

that

it

obtained

the

information from the Secretary of State’s office rather than
from

the

Department

of

Motor

Vehicles,

goes

nowhere.

Department of Motor Vehicles is the Secretary of State.

The
625

ILCS 5/6-117 obligates the Secretary of State to “file every
application for a license or permit accepted under [the Drivers
Licensing

Law]

and

shall

maintain

suitable

indexes

thereof.”

625 ILCS 5/6-110 obligates the Secretary of State to issue “to
every qualifying applicant a driver’s license as applied for,
which license shall bare, inter alia, date of birth, residence
address, and a brief description of the licensee.”

And finally,

625 ILCS 5/2-123 (F-5) (12), similar to the DPPA, specifically
authorizes the Secretary of State to disclose or make available
personally identifying information obtained in connection with a
driver’s license to members of the news media for news gathering
purposes only when the request relates to the “operation of a
motor vehicle or public safety.”
Motor Vehicles mentioned.
term

“public

Illinois

safety”

Vehicle

Code

Nowhere is the Department of

Moreover as Plaintiffs point out, the

appears
and

over

each

twenty-five

relates

to

times

motor

in

the

vehicles,

drivers, driving violations and other similar subjects relating
to motor vehicles.

There is not a single instance where “public
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safety” refers to investigations of police misconduct or any
matter of public significance generally.
the

Sun-Times

conceded

before

the

Finally on this point,

Seventh

Circuit

that

it

“knowingly obtained this additional identifying information from
the motor vehicle records maintained by the Secretary of State”
and that Court so found.

Consequently, in addition, this is the

law of the case.
A.
The

Court

finds

First Affirmative Defense
that

the

issues

concerning

the

First

Affirmative Defense, the “First Amendment,” at this stage with
respect

to

the

obtaining

the

personal

information

presents

sufficient questions of fact so that the Motion for Judgment on
the Pleadings is denied, but the Motion is granted insofar as
publication of the personal information.
B.

Second Affirmative Defense

The Motion for Judgment on the pleadings as to the Second
Affirmative Defense, “Official Source” is granted.
Times

contends

that

the

Secretary

of

State

is

The Sun-

charged

with

interpreting the DPPA but there is no basis for that conclusion.
The DPPA prohibits a person “knowingly to obtain or disclose
personal information from a motor vehicle record.”
Times acknowledged that it did so.

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The Sun-

C.

Third Affirmative Defense

The Motion for Judgment on the pleadings as to the Third
Affirmative

Defense,

“Prior

Restraint”

is

granted

as

the

Plaintiffs no longer appear to be seeking an injunction.
D.
The

Motion

for

Fourth Affirmative Defense

Judgment

on

the

pleadings

as

to

the

Fourth

Affirmative Defense, “Illinois Vehicle Code” is granted.

The

gist of this defense is that the DPPA allows disclosure to the
members

of

the

news

media

when

“the

request

is

operation of a motor vehicle or public safety.”

related

to

As stated

above the request for personal information was not related to
the operation of a motor vehicle or public safety.
E.

Fifth Affirmative Defense

The Motion for Judgment on the pleadings as to the Fifth
Affirmative
basis

of

Defense,
this

“No

defense

privacy
is

that

Interest”
police

is

granted.

officers

officials and thus have no privacy interests.

are

The
public

This is directly

contrary to the Seventh Circuit’s opinion which held that the
legislative history of the DPPA was “to protect the personal
privacy and safety of all American licensed drivers.”
Rec H2526.

140 Cong.

The Plaintiffs are apparently licensed drivers and

are thus covered by the Act.

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F.

Sixth Affirmative Defense

The Motion for Judgment on the pleadings as to the Sixth
Affirmative
granted.

Defense,

“Champerty,

Maintenance

and

Barratry”

is

The basis for this defense is the Sun-Times belief

that the filing and maintenance of this law suit was solely for
the purpose of intimidating the press.

However, the Sun-Times

does not cite any cases as to why any such agreement between the
Plaintiffs and their union would be champertous.

English law

declared a contract of champerty and maintenance void between
the parties and would not authorize dismissal of a suit pursuant
to such contract.

The question cannot properly arise except in

a controversy between the parties to the alleged champertous
agreement or their privies.

Torrence v. Shedd, 112 Ill. 466

(1984).
G.

Seventh and Eighth Affirmative Defenses

The Motion for Judgment on the pleadings as to the Seventh
Affirmative Defense, “Due Process,” and the Eight Affirmative
Defense, “Rule of Lenity” is granted.
the

definition

impermissibly

of

vague

the
and

term

The Sun-Times argues that

“personal

ambiguous

so

information”

the

DPPA

could

is
be

interpreted to allow the obtaining of personal information such
as what it sought from the Secretary of State.

However as the

Seventh Circuit held, the intent of Congress in drafting the
DPPA

was

to

provide

an

expansive
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reading

of

“personal

information”

and

“our

interpretation

is

‘clear

and

precise

enough to give a person of ordinary intelligence fair notice
about what is required of him.’”

Dahlstrom, 777 F.3d at 946.

Therefore neither due process nor lenity is applicable.
H.

Ninth Affirmative Defense

The Motion for Judgment on the pleadings as to the Ninth
Affirmative Defense, “Constitutional Avoidance” is granted.

The

argument here is that where there are two interpretations of a
statute,

one

of

which

poses

constitutional

problems

and

the

other does not, the court must adopt the construction that does
not conflict with the Constitution.

However, as the Seventh

Circuit held, its interpretation of the statute does no conflict
with the Constitution.
III.

CONCLUSION

For the reasons stated herein, the Court rules as follows:
1.

The Motion for Judgment on the Pleadings is denied as

to the claim of obtaining personal information in violation of
the DPPA.

It is granted with respect to publishing the personal

information;
2.

The Motion for Judgment on the Pleadings is denied as

to the First Affirmative Defense with respect to obtaining the
personal information from the Secretary of State and is granted
with respect to the publication of the personal information;

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3.

The Motion for Judgment on the Pleadings is granted as

to the Second, Third, Fourth, Fifth, Sixth, Seventh, Eighth, and
Ninth Affirmative defenses; and
4.

The Motion for a Protective Order is granted in part.

Discovery

is

limited

Plaintiffs’

personal

claimed

the

by

to

the

obtaining

information

plaintiffs.

and

publishing

of

the

issue

damages

Vanecko

was

and

Since

of

the

subsequently

indicted, pled guilty, and is currently incarcerated, there is
no

need

to

retrace

all

of

the

manipulation

of

the

Vanecko

investigation.
IT IS SO ORDERED.

Harry D. Leinenweber, Judge
United States District Court
Dated: September 29, 2016

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