Can a Texas county post driver's license photos of people who owe traffic fines on its public website?

TX AG Opinion GA-0789: Can a county post driver's license photos online to collect traffic fines?

Plain-English summary

The Texas Department of Public Safety asked about a Dallas County program. The county runs a "Wanted" website listing people who owe large amounts in traffic fines and fees, meant to push them to pay. County officials wanted DPS to hand over driver's license photographs to post on that site. DPS was worried this would violate two privacy laws: the federal Driver's Privacy Protection Act (DPPA) and the Texas Motor Vehicle Records Disclosure Act, which is Texas's implementation of the DPPA. Both laws guard the personal information in motor vehicle records, and a driver's license photograph is treated as especially sensitive ("highly restricted personal information" under the federal act).

On the first piece, the Attorney General gave a clear answer. Neither the DPPA nor the Texas Act bars DPS from disclosing driver's license photographs to the Dallas County Sheriff for law enforcement purposes. Both statutes contain an exception letting personal information go to a government or law enforcement agency carrying out its functions, and the Texas Act specifically allows disclosure of a person's photographic image to a law enforcement or criminal justice agency for an official purpose. So the initial transfer from DPS to the sheriff was permitted (though not required).

The harder question was what happens next, when the county posts the photos on a public website, and here the Attorney General declined to give a definitive answer. Both statutes limit an "authorized recipient" from reselling or redisclosing personal information except for permitted uses, and the Texas Act adds a rule against redisclosing in an "identical or substantially identical format." Posting the photos publicly would seem to redisclose them to anyone who visits, and most visitors would not be making a use the law permits. The opinion also flagged a practical hurdle: the Texas Act requires a law enforcement agency that rediscloses to keep records, for at least five years, of every person or entity that received the information and the permitted use, which is hard to satisfy for an open website. On the other side, the opinion pointed to a federal trial court decision, McQuirter v. City of Montgomery, holding that a police department's release of a name and driver's license photo to the media in a press release about a prostitution-sting arrest was within permissible law enforcement conduct and not a prohibited redisclosure. The court there reasoned the DPPA was not meant to hinder law enforcement strategies even when they involve releasing personal information to the public.

Weighing these, the Attorney General said no Texas court had addressed whether a law enforcement agency's online publication of driver's license photos is a prohibited redisclosure, and the federal authority was minimal. A court might treat the county's plan as a restricted redisclosure, or might treat it, like McQuirter, as an official law enforcement disclosure outside the restrictions. Because the answer turned on unsettled law, the opinion concluded it could not state as a matter of law whether Dallas County's proposed online posting would be permissible or an unauthorized redisclosure.

Currency note

This opinion was issued in 2010. Subsequent statutory amendments, court decisions, or later AG opinions may have changed the analysis. Treat this page as historical context, not current legal advice. Verify current law before relying on any specific rule, deadline, or remedy mentioned here.

The DPPA (18 U.S.C. §§ 2721-2725) and Transportation Code chapter 730, along with the case law on redisclosure, may have changed since 2010. Confirm the current statutes and decisions before relying on anything below.

Who this opinion affected (as of 2010)

The Department of Public Safety: The opinion told DPS it could lawfully disclose driver's license photographs to the Dallas County Sheriff for an official law enforcement purpose, because both the DPPA and the Texas Act permit disclosure to a law enforcement agency.

Dallas County and its sheriff: The opinion did not clear or condemn the plan to post the photos online. It left the central legal question (whether public posting is a prohibited redisclosure) unresolved, noting the redisclosure limits, the five-year recordkeeping duty, and the contrary pull of the McQuirter decision.

People listed on the county's "Wanted" site: The opinion meant their privacy claim under the DPPA and Texas Act, if the photos went online, depended on unsettled law that the Attorney General would not resolve, leaving the matter for a court.

Common questions

Did the opinion say DPS could give the photos to the county sheriff?
Yes. It concluded the DPPA and the Texas Act do not prohibit DPS from disclosing driver's license photographs to the sheriff for law enforcement purposes, because both laws allow disclosure to a law enforcement agency for an official purpose.

Did it say the county could post the photos online?
No. The Attorney General declined to decide, saying he could not state as a matter of law whether the online posting would be permissible or an unauthorized redisclosure, given the lack of Texas authority and minimal federal authority.

Why is posting online treated differently from giving the photos to the sheriff?
Because posting publicly would seem to redisclose the photos to viewers who are mostly not making a use the statutes permit, and the laws restrict resale or redisclosure of personal information except for permitted uses.

What recordkeeping does the Texas Act require for redisclosure?
A law enforcement agency that rediscloses must keep, for at least five years, records of every person or entity that received the information and the permitted use, and provide copies to the agency on request.

Background and statutory framework

The federal DPPA restricts disclosure of "personal information" and "highly restricted personal information" obtained by a state motor vehicle department from a motor vehicle record, with exceptions, and defines a photograph as both personal information and highly restricted personal information (18 U.S.C.A. §§ 2721(a)(1)-(2), 2725(1), (3), (4) (West 2000 & Supp. 2009)). Both categories may be disclosed for use by a government agency, including a law enforcement agency, in carrying out its functions (id. § 2721(b)). The DPPA also limits an authorized recipient's resale or redisclosure and requires recordkeeping (id. § 2721(c)).

The Texas Act implements the DPPA (Tex. Transp. Code Ann. § 730.002 (Vernon 1999)). Subject to exceptions, an agency may not disclose personal information obtained in connection with a motor vehicle record (id. § 730.004 (Vernon Supp. 2009)). DPS is an "agency" under chapter 730. Section 730.007 does not generally permit disclosure of a person's photograph, but section 730.007(c)(1)(A) provides that the section does not prohibit disclosing a photographic image to a law enforcement or criminal justice agency for an official purpose, so DPS may disclose photographs to a sheriff for an official purpose. Section 730.013 governs redisclosure: an authorized recipient may not resell or redisclose personal information in an identical or substantially identical format, may redisclose only for a use permitted under section 730.007, and, if it rediscloses, must keep five-year records of recipients and permitted uses (id. § 730.013(a)-(c)).

Applying these provisions, the opinion concluded the initial DPS-to-sheriff disclosure was permitted, but that posting the photos on a public website raised an unresolved redisclosure question. It noted scant authority, with one federal case finding that release of a driver's license photo to the media for an official law enforcement purpose was within permissible law enforcement conduct and not a prohibited redisclosure (McQuirter v. City of Montgomery, No. 2:07-CV-234-MEF, 2008 WL 401360, at *5-6 (M.D. Ala. Feb. 12, 2008), citing Parus v. Kroeplin, 402 F. Supp. 2d 999, 1006 (W.D. Wis. 2005)). Because no Texas court had addressed online publication of such photos and federal authority was minimal, the opinion could not state as a matter of law whether Dallas County's plan would be permissible or an unauthorized redisclosure. The opinion also declined a related fact question about the county's responsibility if a viewer captured and reposted a photo, noting questions of fact cannot be resolved in an attorney general opinion.

Citations

Statutes:

• 18 U.S.C.A. §§ 2721(a)(1)-(2), 2721(b), 2721(c), 2725(1), 2725(3), 2725(4) (West 2000 & Supp. 2009)
• Tex. Transp. Code Ann. §§ 730.001-.016, 730.002, 730.004, 730.007(a)-(c), 730.013(a)-(c) (Vernon 1999 & Supp. 2009)

Cases:

• McQuirter v. City of Montgomery, No. 2:07-CV-234-MEF, 2008 WL 401360 (M.D. Ala. Feb. 12, 2008)
• Parus v. Kroeplin, 402 F. Supp. 2d 999 (W.D. Wis. 2005)

Source

• Landing page: https://www.texasattorneygeneral.gov/opinions/greg-abbott/ga-0789
• Original PDF: https://www.texasattorneygeneral.gov/sites/default/files/opinion-files/opinion/2010/ga0789.pdf

Original opinion text

Best-effort transcription from a scanned PDF. Minor errors may remain — the linked PDF is authoritative.

ATTORNEY GENERAL OF TEXAS

GREG ABBOTT

August 23, 2010

Mr. Steven C. McCraw, Director
Texas Department of Public Safety
5805 North Lamar Boulevard
Austin, Texas 78752-4422

Opinion No. GA-0789

Re: Whether a county's disclosure on its website of driver's license photographs received from the Department of Public Safety would violate the Motor Vehicle Records Disclosure Act or the federal Driver's Privacy Protection Act (RQ-0799-GA)

Dear Mr. McCraw:

Your predecessor, the Interim Director of the Texas Department of Public Safety (the "DPS"), inquired whether Dallas County's plan to post driver's license photographs on a county website would violate the state or federal statutes designed to protect privacy in driver's license records. See 18 U.S.C.A. §§ 2721-2725 (West 2000 & Supp. 2009) (Federal Driver's Privacy Protection Act), TEX. TRANSP. CODE ANN. §§ 730.001-.016 (Vernon 1999 & Supp. 2009) (Texas Motor Vehicle Records Disclosure Act). Dallas County officials have requested driver's license photographs from the DPS to post on the Wanted Site of the county's website. See Request Letter at 1. This site provides information on individuals who owe large amounts of traffic fines and fees to Dallas County. See Wanted Site. The stated purpose of the website is to reduce the number of outstanding citations in the county. See Request Letter at 1. [Footnote 1: Request Letter at 1 (available at http://www.texasattorneygeneral.gov).] [Footnote 2: Dallas County Wanted and Delinquent Offender Search Service, available at http://www.dallascounty.org/dcwantedsearch/ (last visited Aug. 11, 2010) [hereinafter Wanted Site].]

The DPS is concerned that the proposed use of the photos might violate the Federal Driver's Privacy Protection Act (the "DPPA") and the Texas Motor Vehicle Records Disclosure Act (the "Texas Act"), in particular the provisions on redisclosure. See id. at 1-3; 18 U.S.C.A. § 2721(c) (West Supp. 2009); TEX. TRANSP. CODE ANN. § 730.013 (Vernon Supp. 2009). The DPPA restricts the disclosure of "personal information" or "highly restricted personal information" obtained by a state department of motor vehicles in connection with a motor vehicle record, with exceptions for certain permissible uses. See 18 U.S.C.A. § 2721(a)(1)-(2) (West Supp. 2009). "'[H]ighly restricted personal information'" is "an individual's photograph or image, social security number, [and] medical or disability information." Id. § 2725(4). "'[P]ersonal information'" is "information that identifies an individual, including an individual's photograph." See id. § 2725(3). Both "highly restricted personal information" and "personal information" may be disclosed "[f]or use by any government agency, including any court or law enforcement agency, in carrying out its functions." Id. § 2721(b). [Footnote 3: "'[M]otor vehicle record'" is defined as "any record that pertains to a motor vehicle operator's permit, motor vehicle title, motor vehicle registration, or identification card issued by a department of motor vehicles." 18 U.S.C.A. § 2725(1) (West 2000).]

The Texas Act was adopted to implement the DPPA. See TEX. TRANSP. CODE ANN. § 730.002 (Vernon 1999). Subject to exceptions in Transportation Code sections 730.005-.007, "an agency may not disclose personal information about any person obtained by the agency in connection with a motor vehicle record." Id. § 730.004 (Vernon Supp. 2009). The DPS, which issues driver's licenses and maintains driver's license records, is an "agency" within chapter 730. Section 730.007 does not, as a general matter, permit disclosure of a person's photograph. See id. § 730.007(a)-(b) (permitting an agency to disclose an individual's name and address, birth date, and driver's license number for various specific purposes, such as use in connection with motor vehicle safety). However, section 730.007(c) provides that section 730.007 does not prohibit the disclosure of a person's photographic image to "a law enforcement agency or a criminal justice agency for an official purpose." Id. § 730.007(c)(1)(A). Thus, the DPS may, but is not required to, disclose driver's license photographs to a law enforcement agency, such as a sheriff's office, for an official purpose. [Footnote 4: The DPS is also subject to the DPPA. See 18 U.S.C.A. § 2721(a) (West Supp. 2009); Tex. Att'y Gen. Op. No. JC-0499 (2002) at 1.]

The restrictions on redisclosure of personal information in the Texas Act are found in Transportation Code section 730.013, which provides as follows:

(a) An authorized recipient of personal information may not resell or redisclose the personal information in the identical or a substantially identical format the personal information was disclosed to the recipient by the applicable agency.

(b) An authorized recipient of personal information may resell or redisclose the information only for a use permitted under Section 730.007.

(c) Any authorized recipient who resells or rediscloses personal information obtained from an agency shall be required by that agency to:

(1) maintain for a period of not less than five years records as to any person or entity receiving that information and the permitted use for which it was obtained; and

(2) provide copies of those records to the agency on request.

Id. § 730.013(a)-(c). Subsections 730.013(b) and (c) reflect similar provisions in the DPPA. See 18 U.S.C.A. § 2721(c) (West Supp. 2009) (limiting an authorized recipient's resale or redisclosure of personal information and requiring record-keeping as to recipients of such information). [Footnote 5: The federal act does not, however, include any provision comparable to subsection 730.013(a), which prohibits an authorized recipient of personal information from reselling or redisclosing the information "in the identical or a substantially identical format" it was disclosed to the recipient by the applicable agency. Compare TEX. TRANSP. CODE ANN. § 730.013(a) (Vernon Supp. 2009), with 18 U.S.C.A. § 2721(c) (West Supp. 2009).]

The request letter suggests that posting driver's license photographs on a public website would be a redisclosure of personal information in an "identical or substantially identical format" in violation of section 730.013(a). See Request Letter at 2; TEX. TRANSP. CODE ANN. § 730.013(a) (Vernon Supp. 2009). It notes that section 730.013(b) would permit Dallas County to "redisclose the information only for a use permitted under Section 730.007" and that the county would have to keep the records of redisclosures required by title 18, section 2721(c). See Request Letter at 2; 18 U.S.C.A. § 2721(c) (West Supp. 2009); TEX. TRANSP. CODE ANN. § 730.013(b)-(c) (Vernon Supp. 2009). The DPS raises the additional concern that driver's license photos displayed over the website could be captured and redisclosed by an individual without compliance with the DPPA and Transportation Code chapter 730. See Request Letter at 2-3. [Footnote 6: You ask whether Dallas County would be responsible if this happened. Request Letter at 3. The answer to this question depends on all the relevant facts as well as theories of liability relied upon. Questions of fact cannot be resolved in an attorney general opinion. See Tex. Att'y Gen. Op. No. GA-0430 (2006) at 4.]

We consider how the Texas Act balances the limits on redisclosure of personal information with the law enforcement agency's authority to use such information for an official purpose. Posting driver's license photographs on a publicly available website would seem to have the effect of redisclosing the photographs to anyone who views the site. Presumably, most members of the general public viewing such a site would not be making use of the photographs "for a use permitted under Section 730.007." TEX. TRANSP. CODE ANN. § 730.013(b) (Vernon Supp. 2009). [Footnote 7: Without more information, we cannot determine whether such redisclosure would be "in the identical or a substantially identical format" as the photographs were received by DPS, in violation of Texas Transportation Code section 730.013(a). TEX. TRANSP. CODE ANN. § 730.013(b) (Vernon Supp. 2009).]

We also note that section 730.013(c) requires a law enforcement agency to maintain for "not less than five years records as to any person or entity receiving that information and the permitted use for which it was obtained." Id. § 730.013(c)(1). This requirement would impose practical difficulties on any plan to make driver's license photographs or other personal information available to the general public at an online site.

There is scant authority concerning the redisclosure of personal information by a law enforcement agency, but one case finds that a law enforcement agency may redisclose the information to the media for official purposes. See McQuirter v. City of Montgomery, No. 2:07-CV-234-MEF, 2008 WL 401360 (M.D. Ala. Feb. 12, 2008). A lawsuit was brought under the DPPA by a woman whose name and driver's license photograph were mistakenly used in a police department press release on arrests made in a prostitution sting. See id. at 1. The court stated that "the DPPA was not intended to restrict or hinder law enforcement and crime prevention strategies even if those strategies might include releasing personal information to the general public." Id. at 5 (citing Parus v. Kroeplin, 402 F. Supp. 2d 999, 1006 (W.D. Wis. 2005)). It determined that dissemination of the press release to media outlets was "within the limits of permissible law enforcement conduct" under 18 U.S.C.A. § 2721(b)(1). McQuirter, 2008 WL 401360, at *6. There is thus some authority for the proposition that disclosing a driver's license photograph to the public for an official law enforcement purpose is not a prohibited redisclosure of that personal information.

No Texas court has addressed whether publication of driver's license photos by a law enforcement agency would be a redisclosure in violation of the DPPA or the Texas Act. Nor has any court addressed publication of such photos online, which may lead to unlimited redisclosures. A Texas court might determine that the Dallas County Sheriff proposes a redisclosure of photographs that would be subject to the restrictions on redisclosure of the Texas Act and the DPPA. In the alternative, it might determine, as did the federal court in McQuirter, that a particular disclosure of a driver's license photo was for an official law enforcement purpose and therefore was not a redisclosure subject to the applicable statutory restrictions. Given the lack of Texas authority and the minimal federal authority on the issue raised by the DPS, we cannot state as a matter of law whether the online publication of photos proposed by Dallas County would be permissible or would constitute an unauthorized redisclosure under the state or federal act.

SUMMARY

The Federal Driver's Privacy Protection Act and the Texas Motor Vehicle Records Disclosure Act do not prohibit the Department of Public Safety from disclosing driver's license photographs to the Dallas County Sheriff for use in carrying out law enforcement purposes. We cannot state as a matter of law whether the publication of such photos online would be permissible or would constitute an unauthorized redisclosure under the state or federal act.

Very truly yours,

GREG ABBOTT
Attorney General of Texas

DANIEL T. HODGE
First Assistant Attorney General

NANCY S. FULLER
Chair, Opinion Committee

Susan L. Garrison
Assistant Attorney General, Opinion Committee