MEMORANDUM OPINION AND ORDER
Jason Senne has sued the Village of Palatine, alleging that its practice of printing on parking tickets personal information obtained from motor vehicle records violates the Driver’s Privacy Protection Act (DPPA), 18 U.S.C. § 2721. The Village has moved for summary judgment. For the reasons stated below, the Court grants the Village’s motion.
Background
On the night of August 19, 2010, Jason Senne parked his car in front of his house on East Heron Drive in Palatine, Illinois. The next morning, he noticed a parking ticket underneath one of his car’s windshield wipers. The ticket, for $20, had been placed there at 1:85 A.M. the night before and was signed by Officer Joseph Christians. It said Senne had violated Section 18.86 of the Palatine Code of Ordinances, which prohibits parking for longer than fifteen minutes between 1:00 a.m. and 6:00 a.m. Printed on the ticket were Sen-ne’s name, driver’s license number, date of birth, sex, height and weight, and license plate number. The ticket also listed for Senne an address other than the one where he resided. The parties dispute whether it should be considered “Senne’s address.” Senne testified in a deposition that the house at that address once belonged to his mother.
Christians testified during his deposition that he placed the ticket face down under one of the windshield wipers on Senne’s car. The Village contends that some of the information on the ticket was obscured, including Senne’s birthdate, operator license number, height, and weight. Senne responds that this is only because the versions of the ticket that are in evidence are faded and of poor quality.
About one week after receiving the ticket, Senne filed suit in this Court under the DPPA. He alleged in his complaint that the Village “is knowingly obtaining, disclosing, and using personal information for an unpermitted purpose” — the distribution of personal information by placing it on parking tickets such as Senne’s. Compl. at 7. Senne sought certification of the case as a class action on behalf of “[e]ach and every individual who received a parking citation in the Village of Palatine” during the previous four years, if the citation included the individual’s personal information. Id.
On September 1, 2011, the Village moved to dismiss Senne’s case for failure to state a claim. The Village argued first that the DPPA did not apply to its placement of personal information on parking tickets, becadse the placement fell under one of the “permissible uses” outlined in 18 U.S.C. § 2721(b). Senne responded that the Village’s actions did not qualify for any of the exceptions listed in section 2721(b).
On September 22, 2010, this Court granted the Village’s motion to dismiss. The Court concluded that the Village had not disclosed personal information within the meaning of the DPPA, because it had not turned over the information to anyone. In July 2011, a panel of the Seventh Circuit affirmed this Court’s decision. The Seventh Circuit then vacated the panel’s decision and granted an en banc rehearing. In August 2012, the Seventh Circuit re
The Seventh Circuit first held that the Village’s placement of the parking ticket on Senne’s windshield constituted a “disclosure” for purposes of 18 U.S.C. § 2721. Because the statute does not allow a DMV to “knowingly disclose or othenvise make available” protected personal information, the court stated, there is “little doubt about the breadth of the transactions Congress intended to regulate.” Id. at 602 (emphasis added). The court concluded that, given the sweep of the statute’s language in its references to “disclosure,” Congress intended the Village’s action to fall within the reach of the statute. Id. at 602-03. The Seventh Circuit also addressed the Village’s argument that the placement of the ticket was not a “disclosure” because no one other than Senne saw the ticket. The court disagreed, citing the “broad language employed by Congress” in section 2721, as well as the fact that the statute by default prohibits sharing of the information on the ticket, with a limited number of exceptions. The court stated:
[t]he action alleged here, placing the information on the windshield of the vehicle in plain view on a public way, is certainly sufficient to come within the activity regulated by the statute regardless of whether another person viewed the information or whether law enforcement intended it to be viewed only by Mr. Senne himself.
Id. at 603. To hold otherwise, the court said, would be to “misunderstand[ ] the textual scheme that Congress has forged.” Id.
Having held that the Village’s placement of the ticket on Senne’s ear constituted a disclosure, the court then turned to whether the disclosure fell within the permissible uses of personal information under section 2721(b), as the Village contended. The court noted that the Village had not “described in any length how all the information printed on the ticket served either purpose; instead, it maintains, in effect, that the statute does not require that analysis.” Id. at 605. The court rejected this position. It noted that each of the cited exceptions under section 2721(b) includes the phrase “[f]or use” and stated that these words “perform a critical function in the statute and contain the necessary limiting principle that preserves the force of the general prohibition while permitting the disclosures compatible with that prohibition.” Id. at 606. Therefore, “the actual information disclosed — i.e., the disclosure as it existed in fact — must be information that is used for the identified purpose.” Id. In addition, “[t]he disclosure actually made under the exception must be compatible with the purpose of the exception.” Id. To reemphasize this point, the court said that in light of Congress’s stated concern with privacy and security issue, “the disclosed information actually must be used for the purpose stated in the exception.” Id. at 609. The court added, however, that it did not construe “use” in the statute “to mean ‘necessary use,’ nor do we require the Village to adopt some form of ‘best practices’ not commanded by the statute.” Id. at 606 n.12.
The Seventh Circuit went on to conclude that whether the Village’s uses of the information actually complied with § 2721(b) could not be resolved on review of a motion to dismiss and that “[f|urther proceedings will permit the parties to explore this question.” Id. at 608. The court added, however, that “[w]ith respect to some of that information [on Senne’s ticket], it is difficult to conceive, even on a theoretical level, how such information could play a role in the excepted law enforcement purposes.” Id.
Discussion
Summary judgment is appropriate “if the movant shows that there is no genuine dispute as to any material fact and the movant is entitled to judgment as a matter of law.” Fed.R.Civ.P. 56(a). In deciding a motion for summary judgment, a court must “constru[e] all facts and draw[ ] reasonable inferences in the light most favorable to ... the non-moving party.” Mullin v. Temco Machinery, Inc.,
The Village has moved for summary judgment against Senne, arguing first that its “use” of the information it printed on Senne’s parking ticket was permissible under 18 U.S.C. §§ 2721(b)(1), (b)(2), and (b)(4), citing the testimony of its police chief to describe a variety of ways the Village uses the information. Second, the Village contends that it did not “disclose” the information for two reasons: the ticket was placed face down on Senne’s car underneath his wiper blade and thus its information was not disclosed to anyone, and some of the information on the ticket was obscured and also was not disclosed for that reason.
Senne responds that the Village forfeited its right to raise “new” issues in support of its motion. He also contends that the Village’s arguments about section 2721(b) are irrelevant, because his suit is filed under section 2721(c), and the issuing officer and his department’s finance department do not “use” the information printed on the ticket. Finally, Senne argues that the Seventh Circuit already rejected the Village’s arguments that it did not disclose the information for the purposes of the DPPA.
1. Forfeiture
Senne argues that the Village makes “new claims” to support its motion that “were not developed timely [sic] and are, waived [sic].” PL’s Resp. at 14. Specifically, he contends that the Village “could have, but failed to, raise” several of the arguments in its brief at the motion to dismiss phase, including during appeals to the Seventh Circuit and Supreme Court. Id. at 3.
This argument does not pass the straight-face test. Senne cites no case holding that a party forfeits an argument at summary judgment if it does not make the argument as part of a motion to dismiss. Furthermore, the Seventh Circuit directly suggested that the parties further develop the facts on the questions presented here. See Senne,
2. Disclosure
The Village advances two reasons why its inclusion of drivers’ personal information on parking tickets did not constitute a disclosure under the DPPA. First, it contends that the information on the ticket on Senne’s windshield was not “in plain view,” a point the Seventh Circuit had referenced. See Senne,
The Court agrees with Senne. The Seventh Circuit did not rest its conclusion that the Village had disclosed Senne’s information solely on the fact that the information was “in plain view.” Rather, the court considered and rejected essentially the same argument the Village makes now: it did not disclose Senne’s information because no one else saw it. The court stated:
First, such an interpretation ignores the broad language employed by Congress to define and regulate disclosures. Second, such a reading turns the statutory structure on its head. The default rule of the statute is that the DMV, and any person or entity authorized to view its records, is prohibited from sharing the information. The statute then authorizes specific disclosures — each of which, as we shortly shall examine, has a limited object and a limited class of recipients. See 18 U.S.C. § 2721(b). To suggest that the meaning of the term “disclose” is so limited as to take the act of publication of protected information outside the statute’s reach because no specific recipient is proven simply misunderstands the textual scheme that Congress has forged.
Senne,
The same reasoning applies here. The simple act of placing a ticket face down on a windshield, rather than face up, is still a publication of the information and does not render it unavailable to the public. The ticket was still there in public view, with its information available to anyone who chose to pick it up. The fact that picking up the ticket might violate the law does not alter the fact that Village disclosed the information on the ticket within the meaning of the DPPA.
The Village’s second argument is that it did not disclose “any ‘personal information’ because, other than Senne’s name and gender, the remainder of Senne’s ‘personal information’ was either incorrect or illegible.” Id. at 14. With regard to the information that it argues was legible — Senne’s name and gender — the Village says the inclusion of such information on parking tickets “is incredibly common” in Illinois. Id. at 15. It further contends that Illinois Supreme Court Rule 572 requires tickets to include a person’s name in order to be adjudicated and that Senne’s gender was “obvious from his name alone.” Id. Sen-ne responds that a disclosure need not include all of the personal information named in the DPPA to violate the statute, and that any legible disclosures still constitute a violation.
The Village’s claim of illegibility is not entirely accurate. It argues that “much of [Senne’s] operator’s license number, his date of birth and his height and weight” are “obscured and illegible” on the ticket. Def.’s Mem. at 14. The Village is correct that the height and weight figures are hard to read, but Senne’s driver’s license number and date of birth can
3. Permissible use
" The Village argues that its practice regarding parking tickets does not run afoul of the DPPA because the information it prints on tickets “is actually used” for a variety of approved purposes under 18 U.S.C. § 2721(b). Def.’s Mem. at 4-6. The Village describes each of these purposes briefly, some in ways that do not immediately make clear that the information is “used” for the stated purpose, and others in more detail. In response, Senne contends that his suit against the Village is based on section 2721(c), not section 2721(b), and he says the Village has made no argument that its practices comply with section (c). Senne also argues that the uses the Village describes do not explain why the information is printed on parking tickets and that the officers who issue the tickets and the finance clerks who process them do not actually use the information printed on the ticket for any purpose.
Senne may be technically correct that his claim falls under section 2721(c), but that does not alter the outcome. Section 2721(a), the DPPA’s baseline prohibition against distributing personal information, applies only to “[a] State department of motor vehicles” along with its officers, employees, and contractors. A DMV may not release such information “except as provided in subsection (b) of this section.” 18 U.S.C. § 2721(a)(1). The Palatine police, by contrast, are more likely subject to section 2721(c), which governs the “[rjesale or [rjedisclosure” of personal information by “authorized reeipient[s].” Id. § 2721(c). However, Senne’s contention that his claim is not subject to section 2721(b) is incorrect. Under subsection (c), a resale or redisclosure of personal information is permitted “only for a use permitted under subsection (b).” By those terms, it is necessary to refer to the exceptions in subsection (b) to determine whether someone who rediscloses information has violated the DPPA.
Under subsection (b), personal information “may be disclosed” if the disclosure falls under one of fourteen different permissible uses. See Maracich v. Spears, — U.S. -,
As the Court has indicated, in its earlier decision in this case, the Seventh Circuit ruled that “the actual information disclosed — i.e., the disclosure as it existed in fact — must be information that is used for the identified purpose” as set forth in section 2721(b). Senne,
To support its argument that it actually uses the personal information on its parking tickets to carry out its functions, the Village points to the deposition testimony of John Koziol, the Village’s chief of police. Koziol identified more than a dozen “law enforcement purpose[s]” for the inclusion of personal information on parking tickets. See Def.’s Ex. D at 36-50. Some of these purposes, in Koziol’s telling, indicate that the personal information in question is useful to the police department, but not that its inclusion on the ticket is itself useful. For example, he testified that when officers “run this information” — i.e., learn who a driver is and where she lives by entering her license plate number into a data system — they can determine whether a car they encounter is stolen, or that the owner lives at a protected address, or that police have issued a “BOLO” (be on the lookout) order for a particular car, such as one with a dead body in the trunk. See id. at 36-37. He gave similar testimony in relation to service of process, saying that the police “want to make sure that we’re properly serving someone.” Id. at 39. These purposes might warrant obtaining the suspected vehicle owner’s personal information in the first place, but they do not justify its disclosure on the parking ticket. What is at issue in this case is disclosure of personal information, not obtaining it in the first place, or using it before placing it on a ticket.
Some of the other purposes that Koziol identified suggest that including the suspected vehicle owner’s information on a parking ticket has an incidental effect that is beneficial. Koziol testified that ticket recipients who see their information on the ticket “know that we know who they are
Some of the purposes that Koziol identified do, however, indicate actual use of personal information that the Village prints on tickets. Koziol discussed how watch commanders at police stations use the information to consider whether to void tickets claimed to have been incorrectly issued to out-of-towners. A commander “operates off that complaining person’s copy,” and “can look and see that the address is from another area and he can determine if the guy is telling him the truth.” Id. at 41. The commander learns that the person presenting the ticket is “probably the guy that got the ticket based on his physical description and what’s on the citation.” Id. Along with other information on the ticket, “[tjhat’s all the watch commander has in front of him is that cardboard stock when someone comes in, so we find that important.” Id. at 42. Koziol also testified that the information on the tickets serves the same identification purpose during traffic stops in which the driver has no identification but does have a parking ticket. In such cases, “many times” with non-English speakers, drivers “have a parking ticket in their glove box and hand that to you immediately because they have trouble communicating.” Id. at 47. Then, “[t]he officer looks at that citation and he can take it back to his car, run that information to determine if the person is a licensed driver and that kind of a thing.” Id. Koziol also said the information helps drivers when an officer issues a ticket to the wrong person. “They come in here and say I got this citation, I was there but this is not me,” Koziol testified. Id. at 44. “[W]hen someone is that decent to come in — and they do it quite often — we automatically void the ticket out.” Id.
Senne argues that the Village’s stated uses for including the personal information on the tickets are “speculative,” “uncorroborated,” and otherwise inadequate. Pl.’s Resp. at 8; see also Pl.’s Resp. to Def.’s LR 56.1 Stat ¶¶ 42-55. He also argues that the Village did not use Senne’s particular personal information for any of the stated purposes. Senne also opines, without citing evidence, that “[e]learly, the purpose of the envelope copy of the ticket being left on the car is to inform the vehicle’s operator that they have violated an ordinance and that the vehicle owner may be financially indebted to the Village.”
Senne’s contention that the Village’s issuing officers, finance clerks, and cashiers do not use the information on the tickets is non-responsive to the Village’s contention that other police officers use the information in a variety of ways. His contention therefore does not indicate the existence of a genuine issue of material fact. Indeed, the Village does not dispute Senne’s factual statements about the processing of paid tickets by clerks in the police department. And even if Senne is correct that paid tickets are destroyed, that does not implicate any of the unpaid tickets that the Village contends are used for identification purposes during traffic stops, or when a watch commander voids a ticket for an out-of-town resident.
Nonetheless, Senne’s arguments bring to the fore a basic question about exactly what is required for one who discloses personal information covered by the DPPA to establish that its disclosure was permissible under section 2721(b). The Seventh Circuit’s decision, though it rejected the Village’s arguments for purposes of its motion to dismiss, is less than clear regarding how a court should go about determining whether the disclosed information is actually used for the purpose stated in the statutory exception. See Senne,
The Court believes that the correct reading is that the ultimate or potential use of personal information qualifies as acceptable use under the DPPA if it is for a permissible purpose listed in section 2721(b). As the Seventh Circuit has not
Several courts have made similar conclusions when dealing with sales of personal information that a vendor has obtained from a state. In Taylor v. Acxiom Corp.,
Another district court may have put it best when it determined that obtaining personal information for potential future acceptable use is acceptable under the DPPA: “A person buys an umbrella for use in the rain, even if the person is fortunate enough never to actually use it. A homeowner buys a fire extinguisher for use in a fire, even if there is no fire.” Welch v. Jones,
This reasoning applies equally to this case. The Village does not contend that the personal information that was included on the parking ticket issued to Senne was actually used for the error correction or identification-related purposes that Koziol identified. And although it is conceivable that one of the incidental purposes that Koziol identified — the proposition that putting a person’s name and identifying information on a ticket makes it more likely the
The Court concludes that the justifications that the Village offers for its disclosure of DPPA-protected personal information are sufficient under subsection 2721(b)(1), though not under the other subsections the Village cites. As the Court has indicated, the Village has offered un-contradicted evidence that in some situations, it uses the personal information that it discloses on parking tickets to void erroneously issued tickets and to help identify drivers lacking other identification. Not all of the personal information disclosed on parking tickets in Palatine may be absolutely necessary for this purpose, but the Seventh Circuit’s earlier decision in this case makes it clear that to be permissible, a use of protected information need not be “necessary” or a “best praetice[ ].” Senne,
Conclusion
For the foregoing reasons, the Court grants defendant Village of Palatine’s motion for summary judgment [docket no. 112] and directs the Clerk to enter judgment in favor of the defendant. Plaintiffs motion for class certification is terminated as moot [docket no. 91].
Notes
.In addressing the Village’s motion to dismiss, the Seventh Circuit said that "[t]he otherwise protected information actually disclosed here included Mr. Senne’s full name, address, driver's license number, date of birth, sex, height and weight.” Senne,
. The same is true of the Village’s argument that Illinois Supreme Court Rule 572 mandates inclusion of personal information on a ticket. Rather, the Rule says only that a document charging an ordinance violation must include the defendant's name and address and that a citation or ticket may be used as the charging document.
. In his response to the Village’s motion, Sen-ne also refers to the requirement in section 2721(c) that authorized recipients of personal information who redisclose such information "must keep for a period of 5 years records identifying each person or entity that receives information and the permitted purpose for
. None of these arguments in Senne's brief is supported by a citation. The Court was able to locate support for most of the arguments in Senne’s Local Rule 56.1 statement of facts. The Village is correct to observe, however, that the cited portion of the record does not support Senne's contention in his statement of facts that the Village police clerk his lawyer deposed, Mary Goluszka, was responsible for processing Senne’s own ticket. See Def.’s Resp. to PL's LR 56.1 Stat. ¶ 15 (plaintiff's statement that "Mary Goluszka did not input Senne's driver's operator license number, date of birth, height, weight, or sex into the database, because she does not use that information'' (citing Pl.'s Ex. A at 19:4-13, 40:1-43:4, PL’s Ex. A-5)).