Press advocates fear privacy bill may close more motor vehicle records

Wednesday, September 22, 1999

As part of the Indianapolis Star-News' recent coverage of a mayoral election, reporter Kyle Niederpruem visited Indiana's Bureau of Motor Vehicles to check the driving history of the two leading candidates.

Worried that she might run into a few roadblocks in her search, Niederpreum brought along one of the newspapers' attorneys. As expected, bureau officials protested the search. Although the officials began to relent, they demanded that Niederpruem fill out forms detailing how she intended to use the information.

Although several hours of persuasion eventually produced the records — one of which revealed that one candidate had numerous citations for speeding — Niederpruem said most people seeking records would have given up.

“Is this a major earthquake of a story? Probably not,” said Niederpruem, who covers government-access issues in a column called “For the Record.” “But it means that in Indiana you can't check the safety of school buses because you can't check the safety records of school bus drivers. You can't check on airline pilots. You can't check on taxi cab drivers. You simply can't check.”

Neiderpruem and other journalists blame Congress for much of the confusion, explaining that the Drivers Privacy Protection Act of 1994 succeeded in creating a hodgepodge of state laws that essentially close safety records to public scrutiny. But journalists worry the situation may get worse as new legislation circulates through Congress this session.

Last week, the Senate passed, as part of a federal highway appropriations bill, a measure that would forbid states receiving federal transportation dollars from selling information from state motor vehicle records without express permission from their citizens. The bill offers no exemptions except for law enforcement officials.

But as journalists rally to combat the bill in the House, they have begun an extensive debate on whether they should press for a news media exemption to the closure of records.

On one side are journalists who say they should continue pushing government-access laws as a public right, not a press one. They also say that the creation of exemptions leads to governmental conditions on access and determinations about who qualifies as a member of the “news media.”

But journalists on the other side say it's a mistake to rely on an “all or nothing” argument. If the only workable way to keep the records open is to grant exemptions to reporters, then the news media should accept such exemptions, some say.

The Star-News's Niederpruem, who serves as president-elect of the Society of Professional Journalists, says this split in opinion among journalists works in favor of those who want to keep the records closed. She said SPJ officials plan to consider adopting a single position on the matter during the group's national convention in Indianapolis next month.

Most journalists already agree that the original Drivers Privacy Protection Act stifled access to motor vehicle records in many states. Passed in 1994, the privacy law prohibits states from releasing information from driver's license and motor vehicle registrations unless a system is first established to allow citizens a way to forbid the release of their personal information.

Many states adopted an “opt-out” process, whereby citizens could inform the state in writing if they didn't want that information made available to the public.

Under the proposed law, states must obtain the express written consent of citizens before they sell the information to groups that use the records for surveys, marketing or solicitations. States that fail to comply could lose millions in federal highway dollars.

The original bill, sponsored by Sen. Richard Shelby, R-Ala., would have forbidden state officials from providing any motor vehicle information without consent. Shelby's staff contends that because only the sale of the records is regulated, the news-gathering process won't be further inhibited.

But Molly Leahy, a lobbyist with the Newspaper Association of America, said the bill remains “a mixed bag,” mainly because access to records depends on how the states would implement the provisions of the bill.

“It seems that they've tried to just limit it to marketing, but they've done it in such a way that isn't as clear as it should be,” Leahy said. “We would rather it would all go away.”

When Congress debated the original Drivers Privacy Protection Act, the leading sponsor, Sen. Barbara Boxer, D-Calif., offered an exemption for reporters. SPJ passed on the offer.

“We decided that we should take the high road and side with the public rather than carve out an exemption for ourselves,” said Paul McMasters, First Amendment ombudsman for The Freedom Forum and SPJ president at the time. “For good or ill, the press needs to cast its lot with the people. To accept an exemption is just one more example in the public's mind that we care more about our rights than theirs.”

Journalism professor Herb Strentz of Drake University in Des Moines, Iowa, argues that journalists should have taken the exemption, noting that they already enjoy extraordinary privileges, such as various shield laws and cameras in many courtrooms.

“What is needed is some kind of public-interest test or public-interest recognition in terms of access,” Strentz said. “But it may be that the only workable way to get that is through an exemption for the press.”

But many say there's a fundamental problem: Somebody has to decide who's the press.

“And then, any special privilege is going to have hooks to it,” said Jane Kirtley, a journalism professor at the University of Minnesota School of Journalism and Mass Communication. “Once you start falling into this exemption game, people are going to put provisos and patches on it.”

But Kirtley contends that arguments over the bill may be moot since the U.S. Supreme Court this term plans to decide in United Reporting Publishing v. California Highway Patrol whether government can create exemptions with regard to who has access to records.

“The question is squarely before the court,” Kirtley said. “If that is decided how I think it will be decided then the press exemptions won't be possible because all exemptions will be struck down.”