States Moving to Block Sale of Records

By Kirtley, Jane | American Journalism Review, April 1999 | Go to article overview

States Moving to Block Sale of Records


Kirtley, Jane, American Journalism Review


Reporters' information-gathering abilities may be threatened.

Governors in Florida, South Carolina and Colorado said in late January they were shocked to discover that digitized versions of driver's license photos had been sold to a New Hampshire company at a handsome profit for the states' treasuries.

In response to cries of outrage from drivers offended by the thought of their mug shots being zapped out of state, the governors sought court injunctions and legislation to stop it.

What does Image Data LLC want to do with the photos? Its nefarious scheme is to create a national database that would be sold to retailers who want to verify a customer's identity before accepting a credit card or check. If this is such an offensive idea, you'd think it would be simpler to pass a law making the creation of such databases illegal.

But aside from interfering with free enterprise, passing legislation like that would implicate the First Amendment, because peddling accurate information--which journalists also do--is protected by the Constitution. Rather than grapple with that issue head on, the three states are working to cut off access to the information at the source. No sale. No data. No database.

At about the same time this photo furor was going on, the U.S. Supreme Court agreed to review a decision of the 9th U.S. Circuit Court of Appeals, which last June declared unconstitutional a California statute prohibiting the release of addresses of people who have been arrested if the requester plans to use the records for "commercial purposes."

Before the law was enacted in 1996, a private publishing service called United Reporting Publishing Corp. had obtained this arrest information from various California police departments. United Reporting then passed it on, for a fee, to its clients, including lawyers, insurance companies and driving schools. But under the new law, only requesters falling under protected categories would be allowed access. They include journalists, scholars, private investigators and those seeking information for political purposes and who are prepared to swear under penalty of perjury that the data wouldn't be used to sell a product or service.

United Reporting sued the California Highway Patrol and the Los Angeles Police Department, among others, contending that by enforcing a law that limits access to information, they violated a constitutional right to disseminate the truth. Consistent with many state access laws and the federal Freedom of Information Act, which do not consider journalism to be a commercial activity, United Reporting argued its publishing business wasn't commercial at all, but pure speech, entitled to the highest level of First Amendment protection. …

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