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Dahlstrom v. Sun-Times Media, LLC

United States District Court, N.D. Illinois, Eastern Division

September 29, 2016

SCOTT DAHLSTROM, HUGH GALLAGLY, PETER KELLY, ROBERT SHEA, and EMMET WELCH, Plaintiffs,
v.
SUN-TIMES MEDIA, LLC d/b/a THE CHICAGO SUN-TIMES and Any Other Known Corporate Name, Defendants.

          MEMORANDUM OPINION AND ORDER

          Harry D. Leinenweber, Judge

         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 a homicide investigation in a high-profile case involving Mayor Richard M. Daley's nephew, Richard Vanecko (“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. As a result, a witness was unable to identify Vanecko and the charges were subsequently dropped against him. 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 of Appeals. The Court reviewed this Court's ruling de novo and concluded that the information obtained was personal information under the DPPA, and the Sun-Times possessed no constitutional right, either to obtain the officers' personal information from the motor vehicle records, or to publish the unlawfully obtained information. Thus the Court affirmed this Court's denial of the Sun-Times Motion to Dismiss.

         After remand, the Sun-Times filed an Answer to the Complaint together with nine affirmative defenses. The Plaintiffs have now moved for judgment on the pleadings in their favor. They have also moved to dismiss the nine affirmative defenses, or, in the alternative, to have them stricken. Plaintiffs have also moved for a protective order limiting discovery to the issue of whether the Sun-Times violated the DPPA.

         II. DISCUSSION

         The Plaintiffs' position on their Motion is straight forward. 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). The Court further stated with respect to the balancing 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 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. Id.

         The Sun-Times, on the other hand in its Answer and Affirmative Defenses, wants to reargue all of the same points that it argued before the Seventh Circuit, i.e., first amendment, prior restraint, due process, lack of privacy interest, and public safety (some are couched in new terms: the rule of lenity and constitutional avoidance). 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 expects some remuneration if Plaintiffs are successful. The Sun-Times also argues that it is entitled to all reasonable inferences in its favor as the non-movement when assessing its answer and affirmative defenses. Fail-Safe v. A.O. Smith Corp., 674 F.3d 889, 892 (7th Cir. 2012).

         In response to Plaintiffs' Motion, the Sun-Times makes three principal arguments. First, with respect to balancing the Plaintiffs' privacy 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 lacks knowledge of whether the Secretary of State assessed the DMV records when it disclosed the 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 ...


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