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Advancement Project and Marian K. Schneider v. Pennsylvania Department of Transportation

January 14, 2013


The opinion of the court was delivered by: Mary Hannah Leavitt, Judge

Argued: June 4, 2012





Advancement Project*fn1 and Marian K. Schneider (collectively, Schneider) petition for review of a final determination of the Office of Open Records (Open Records) denying her appeal of the Department of Transportation's (PennDOT) refusal to provide her information about the photo identification cards and drivers' licenses it has issued over the last four years. Specifically, Schneider 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. She submitted this written request pursuant to the Right-to-Know Law.*fn2 Schneider claims that Open Records erred in holding that the information she is requesting is exempt from disclosure. Alternatively, Schneider contends that this information can and should be released because she wants to use it for research. We affirm Open Records.

This case began on September 2, 2011, when Schneider submitted her Right-to-Know Law request to PennDOT seeking information about persons with a Pennsylvania driver's license or a Pennsylvania non-driver photo ID, which PennDOT issues to persons over the age of 18 who are not allowed to drive or choose not to. Specifically, Schneider's written request stated as follows:

Records of all individuals 18 years of age or older to whom PennDOT (through the Department of Motor Vehicles) has issued either a new or renewal Pennsylvania driver's license within the past 4 years or other photo ID. I specifically request the following information for each driver's license or photo ID holder: Full name, complete address, date of birth, social security number or last 4 digits of social security number, date of issue and date of expiration. In addition, I request the information in reasonably accessible electronic format such as in a format compatible with Microsoft Excel, or comma delimited data or other format compatible with readily available database software. I do not wish to receive these records in paper format.

Reproduced Record at 5a (R.R.__) (emphasis added). In her brief, Schneider explains that she intends to compare this information to the list of registered voters in the Department of State's Statewide Uniform Registry of Electors (SURE) database. With this comparison, Schneider will be able to calculate the number of non-driver photo ID cards the Commonwealth will have to issue under recent amendments to the Pennsylvania Election Code,*fn3 commonly known as Pennsylvania's "Voter ID Law," which requires voters to present photo identification in order to cast a ballot. Schneider did not include her reason for requesting the documents in her written request to PennDOT.

On September 23, 2011, PennDOT denied Schneider's request. In its letter, PennDOT proffered several reasons for this denial. First, it cited Section 705 of the Right-to-Know Law,*fn4 which provides that an agency is not required to create a record to satisfy a records request. PennDOT stated that it does not have a list of licensees and photo ID holders with all the information requested by Schneider. Second, PennDOT argued that Section 6114 of the Vehicle Code*fn5 and Section 92.5 of Title 67 of the Pennsylvania Code*fn6 both prohibit disclosure of the 75 Pa. C.S. §6114(a)(1) (emphasis added). requested information. Third, PennDOT cited Section 708(b)(6) of the Right-to-Know Law, which exempts from disclosure records "containing all or part of a person's Social Security number [or] driver's license number." 65 P.S. §67.708(b)(6)(i)(A). Fourth, PennDOT cited the federal Driver's Privacy Protection Act, 18 U.S.C. §§2721-2725 (Privacy Act), as prohibiting PennDOT from disclosing the records requested by Schneider.

Schneider appealed PennDOT's denial to Open Records. In her appeal, Schneider narrowed her request to the name, address, date of birth and expiration date of each driver's license or photo ID. Schneider also clarified that she would accept the records in any available electronic format. In response to the appeal, Open Records invited both parties to supplement the record. Janet Dolan, Director of the Bureau of Driver Licensing for PennDOT, provided Open Records a position statement and sworn affidavit.*fn7

Dolan's affidavit acknowledged that PennDOT has the name, address, date of birth, Social Security number, and dates of issuance and expiration for driver's license and photo ID holders. The affidavit did not explain how the information is stored. In light of these inadequacies, Open Records held that PennDOT did not prove that it would be forced to create a record to comply with Schneider's request. Nevertheless, Open Records denied Schneider's appeal because it concluded that the information she requested was exempt from disclosure.

Open Records cited Section 6114 of the Vehicle Code, which makes it unlawful for PennDOT to "disclose records or reports which relate to the driving record of any person." 75 Pa. C.S. ยง6114(a)(1). Noting that the Vehicle Code does not define "driving record," Open Records relied on its prior decision holding that the term refers to "a record relating to an individual's driving." Dunbar v. Department of Transportation, OOR Dkt. AP 2010-564, 2010 PA O.O.R.D. LEXIS 493, at *4. Open Records concluded that driver's licenses were "driving records." Open Records also noted that the federal Privacy Act prohibits disclosure of a licensee's date of birth, zip ...

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