IN THE UNITED STATES DISTRICT COURT

FOR THE NORTHER DISTRICT OF ILLINOIS

EASTERN DIVISION

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.

Case No. 12 C 658

Judge Harry D. Leinenweber

MEMORANDUM OPINION AND ORDER

Both parties seek reconsideration of this Court’s September 29, 

2016, Memorandum Opinion and Order (ECF No. 80). For the reasons stated 

herein, Defendant’s Motion to Reconsider (ECF No. 110) is denied, and 

Plaintiffs’ Motion to Reconsider (ECF No. 112) is granted.

I. BACKGROUND

Five police officers brought this action against Sun-Times Media, 

LLC (“Sun-Times”), a Chicago newspaper, for obtaining personal 

information about them from state motor vehicle records and publishing 

that information in its coverage of a politically-charged homicide 

investigation. In April 2004, David Koschman died after an altercation 

with R.J. Vanecko, nephew to Richard M. Daley, then-Mayor of Chicago. 

The subsequent Chicago Police Department (“CPD”) investigation resulted 

in no charges against Vanecko because no eyewitness positively identified 

him. Not relevant to this case, but certainly noteworthy, is that after 

the CPD failed to bring charges, a special prosecutor was appointed to 

investigate Koschman’s death. The investigation led to Vanecko’s 

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indictment and charge of a single count of involuntary manslaughter. 

Vanecko pled guilty in January 2014. 

The Sun-Times published a series of investigative reports 

criticizing the CPD’s investigation and failure to bring charges against 

Vanecko. One article in the series is at the center of this case. On 

November 21, 2011, the Sun-Times published an article titled, “Daley 

Nephew Biggest Guy on Scene, But Not in Lineup,” which described how the 

lineup contained only men who closely resembled Vanecko. The Sun-Times 

accused the CPD of manipulating the lineup to lead to misidentification 

and thus stop charges from being filed. The article included two lineup 

photos: the first lineup comprising fillers—Plaintiffs—and the second 

lineup comprising Vanecko’s friends present at the scene of the crime. 

Alongside the photos, the Sun-Times published a graphic that identified 

Plaintiffs in the first lineup by name and birthdate, as well as by 

height, weight, hair color, and eye color (collectively “the 

Information”). Plaintiffs allege that the Sun-Times violated the 

Driver’s Privacy Protection Act (“DPPA”), 18 U.S.C. § 2721 et seq., by 

(1) obtaining personal information from their motor vehicle records and 

(2) disclosing that information to the public. 

The Sun-Times moved to dismiss that claim, arguing that the DPPA 

does not prohibit the type of information disclosed by the Sun-Times and 

that even if it did, the DPPA’s prohibitions as applied violated the 

First Amendment. The Court denied the Sun-Times’ Motion to Dismiss but 

granted an interlocutory appeal to the Seventh Circuit. Dahlstrom v. 

Sun-Times Media, LLC, 39 F. Supp. 3d 998 (N.D. Ill. 2014). The Seventh 

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Circuit affirmed this Court’s ruling, holding that: (1) the Information 

constituted “personal information” under the DPPA; (2) the DPPA’s 

prohibition on obtaining personal information did not warrant heightened 

First Amendment scrutiny, and, as such, was rationally related to the 

government’s legitimate interest; and (3) the DPPA’s prohibition on 

disclosing personal information was content-neutral, and passed muster 

under intermediate scrutiny by furthering important government interests 

unrelated to suppression of free expression and not restricting more 

speech than was necessary to further those interests. Dahlstrom v. SunTimes Media, LLC, 777 F.3d 937 (7th Cir. 2015). In other words, the 

DPPA, as applied, did not violate the First Amendment in prohibiting the 

Sun-Times from either obtaining the officers’ personal information from 

motor vehicle records or subsequently disclosing that information. Id. 

After remand, the Sun-Times filed its Answer to the Complaint, 

pleading nine affirmative defenses. Plaintiffs moved for judgment on 

the pleadings and to strike the affirmative defenses. The Court granted 

Plaintiffs judgment on the pleadings as to the disclosure claim, but 

denied it as to the obtainment claim, reasoning:

The Sun-Times’ best argument is that at the time it obtained 

the Plaintiffs’ personal information it did not have the lineup photographs to compare the fillers with Vanecko. It 

appears that the Seventh Circuit may well in fact recognize 

a “balancing” test so that under certain circumstances the 

press would be allowed to obtain personal information while 

investigating a matter of public significance and the 

invasion of privacy was not particularly great. Recall that 

there are two separate acts here that arguably violate the 

DPPA. First, obtaining the information, and, second, its 

publication. Although the record is silent as to the date 

the Sun-Times obtained the personal information from the 

Secretary of State, the implication from the pleadings is 

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that it did not have access to the line-up photos at the time 

it obtained the personal information. Thus a balancing could 

arguably come out in favor of the Sun-Times for the act of 

obtaining the personal information. However, at the time of 

its publication, the Sun-Times did have the photographs so 

that the personal information at the time of publication was, 

as the Seventh Circuit found, “largely cumulative.”

Dahlstrom v. Sun-Times Media, LLC, No. 12-c-658, 2016 WL 5477889, at *3 

(N.D. Ill. Sept. 29, 2016). Correspondingly, the Court struck the First 

Amendment affirmative defense as to the disclosure claim.

Now, after further discovery between the parties, both parties move 

the Court to reconsider its earlier ruling. 

II. ANALYSIS

A. Motion to Reconsider Standard

No final judgment has been entered in this case, thus Rule 54(b) 

governs the parties’ Motions for Reconsideration. Under Rule 54(b), “any 

order . . . that adjudicates fewer than all the claims . . . does not 

end the action as to any of the claims or parties and may be revised at 

any time before the entry of a judgment.” FED. R. CIV. P. 54(b); Galvan 

v. Norberg, 678 F.3d 581, 587 n.3 (7th Cir. 2012). Courts may grant 

motions for reconsideration “to correct manifest errors of law or fact 

or to present newly discovered evidence.” Caisse Nationale de Credit 

Agricole v. CBI Indus., Inc., 90 F.3d 1264, 1269 (7th Cir. 1996). 

“[M]anifest error is not demonstrated by the disappointment of the losing 

party,” but rather by the “misapplication or failure to recognize 

controlling precedent.” Oto v. Metro. Life Ins. Co., 224 F.3d 601, 606 

(7th Cir. 2000) (internal quotation and citation omitted). The rule 

allows the court to correct its own errors and avoid unnecessary 

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appellate procedures. Miller v. Safeco Ins. Co. of Am., 683 F.3d 805, 

813 (7th Cir. 2012).

B. The Parties’ Motions to Reconsider

Plaintiffs’ and the Sun-Times’ arguments for their respective 

Motions to Reconsider substantially overlap and so will be addressed 

together. As already described, the Court granted Plaintiffs judgment 

on their disclosure claim, but not on their obtainment claim. Plaintiffs 

argue they are entitled to judgment on both, however, and that this Court 

erred by applying a higher scrutiny balancing test—as opposed to a 

rational basis test—to the obtainment claim. 

Plaintiffs are correct. The Seventh Circuit applied the balancing 

test to the disclosure claim because of the First Amendment implications. 

See Dahlstrom, 777 F.3d at 949 (citing Bartnicki v. Vopper, 532 U.S. 

514, 527 (2001) (finding that “if the acts of ‘disclosing’ and 

‘publishing’ information do not constitute speech, it is hard to imagine 

what does fall within that category”)). But the Seventh Circuit 

distinguished the First Amendment concerns at play with disclosure from 

those at play with obtainment stating, “the First Amendment does not 

guarantee the press a constitutional right of special access to 

information not available to the public generally.” Id. at 946 (quoting 

Pell v. Procunier, 417 U.S. 817, 833 (1974)) (internal quotations 

omitted). Thus, the Seventh Circuit ruled that because Plaintiff’s 

obtainment claim constituted “a limitation only on access to 

information,” it should be judged by the rational basis standard and 

does not require a heightened scrutiny balancing test. Id. at 949. 

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This Court’s earlier ruling failed to trace that distinction. The 

Court’s earlier reasoning applied the balancing test applicable to the 

disclosure claim to the obtainment claim as well, even though the First 

Amendment implications are not present in the latter. Accordingly, the 

Plaintiffs’ Motion is well taken. Whether the Sun-Times obtained 

Plaintiffs’ personal information before or after the Sun-Times received 

the photographs is irrelevant to the obtainment claim because heightened 

scrutiny does not apply. The appropriate standard is rational basis, 

which requires that the law bear “a rational relationship to a legitimate 

government interest.” Wisconsin Educ. Ass’n Council v. Walker, 705 F.3d 

640, 653 (7th Cir. 2013). The obtainment claim withstands rational basis 

scrutiny because the government has a legitimate interest in 

“prevent[ing] stalkers and criminals from utilizing motor vehicle 

records to acquire information about their victims.” Id; see also

Maracich v. Spears, 133 S. Ct. 2191, 2198 (2013) (discussing the 1989 

murder of television actress Rebecca Shaeffer by an obsessed fan who 

obtained her unlisted home address from a motor vehicle record, which 

served as the impetus for the DPPA’s passage). In other words, the DPPA 

reflects the government’s legitimate interest in public safety, and such 

interest is rationally related to the DPPA’s prohibition on obtaining 

personal information from driving records. By applying the correct level 

of scrutiny, the Court finds that its prior determination on the 

obtainment claim was misplaced.

However, the Court’s acknowledgment that it erred on the obtainment 

claim analysis does not necessarily get Plaintiffs over the finish line. 

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The Sun-Times raises several arguments against judgment on the pleadings 

for Plaintiffs which fall into three categories: (1) the Sun-Times’ 

reliance on the Illinois Secretary of State’s (“Secretary”) 

authorization to disclose the Information; (2) the Supreme Court’s recent 

decisions in Packingham v. North Carolina, 137 S. Ct. 1730 (2017), and 

Reed v. Town of Gilbert, 135 S. Ct. 2218 (2015); and (3) new evidence 

uncovered in discovery. 

1. The Secretary of State’s Authority

Under the first category, the Sun-Times raises several arguments 

for why the Court must reconsider its ruling, including: (1) the 

Secretary authorized disclosure of the Information, making the SunTimes’ publication lawful; (2) as such, the Court must defer to the 

Secretary’s authorization under Chevron v. Natural Resource Defense 

Council, 467 U.S. 837 (1984); (3) in the alternative, the Sun-Times was 

entitled to rely on the Secretary’s implied representation of the 

lawfulness of disclosing the Information; and (4) the Sun-Times could 

not have “knowingly” violated the DPPA because it relied on the 

Secretary’s authorization of the Information. 

Turning to the first argument, the Sun-Times offers the declaration 

of Donna Leonard, the executive counsel of the Illinois Secretary of 

State, which asserts that the Secretary disclosed the Information to the 

Sun-Times based on the Secretary’s policy that the Information was not 

“personal information” under the DPPA. The Sun-Times argues that it 

cannot be held liable where it relied on the Secretary’s determination 

that the Information was not covered under the DPPA. However, the DPPA 

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says otherwise. The Secretary might have violated Section 2721(a)—which 

prohibits the Secretary from “knowingly disclos[ing]” personal 

information—but its violation does not immunize the Sun-Times from 

liability under Section 2722(a)—which prohibits any person from 

knowingly obtaining or disclosing personal information from a motor 

vehicle record for any non-permitted use. Put simply, an initial 

violation by one party does not negate subsequent violations by another. 

See Dahlstrom, 777 F.3d at 952 (finding that here, “there is no 

intervening illegal actor: [the] Sun-Times itself unlawfully sought and 

acquired the Officers’ personal information from the Secretary . . . and 

proceeded to publish it”). The Sun-Times “knowingly” requested and 

obtained the Information from a motor vehicle record. See Pavone v. Law 

Offices of Anthony Mancini, Ltd., 205 F. Supp. 3d 961, 967 (N.D. Ill. 

2016) (finding that the “knowingly” element “does not require proof that 

the defendant knew he was obtaining, using, or disclosing information 

illegally” (emphasis added)). As established by the Seventh Circuit, 

the Information here constitutes personal information, id. at 493-97. 

Thus, the Sun-Times’ actions fall squarely within Section 2722(a), 

regardless of whether the Secretary lawfully or unlawfully disclosed the 

Information.

The Sun-Times’ reliance on Chevron deference is also misplaced. 

Chevron deference only applies where “an agency is authorized by Congress 

to issue regulations and promulgates a regulation interpreting a statute 

it enforces.” Encino Motorcars, LLC v. Navarro, 136 S. Ct. 2117, 2124 

(2016); see Christensen v. Harris Cnty., 529 U.S. 576, 596-97 (2000) 

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(Breyer, J., dissenting) (stating that where it is in doubt that Congress 

intended to delegate interpretive authority to an agency, Chevron is 

“inapplicable”). The Sun-Times points to no authority showing that the 

Secretary was authorized to issue regulations interpreting the DPPA. 

The Sun-Times mentions 18 U.S.C. § 2721(a), but, as provided above, this 

provision prohibits the Secretary from “knowingly disclos[ing]” personal 

information; it has nothing to do with granting the Secretary the 

requisite interpretive authority. The Illinois Secretary is not 

authorized to interpret the DPPA—a federal statute—for the rest of the 

country. While the Secretary—just like all other parallel agencies in 

the country—must interpret the statue to comply with it, that is not 

tantamount to having delegated authority to interpret the statute

authoritatively.

The Court turns next to the Sun-Times’ third argument: the SunTimes was entitled to “rely on the government’s implied representations 

of the lawfulness of dissemination.” Fla. Star v. B.J.F., 491 U.S. 524, 

536 (1989). At first glance, the argument seems meritorious. In Florida 

Star, a rape victim sued a newspaper that published her name after 

obtaining it from a publicly-released police report. Id. at 528. The 

Supreme Court held that imposing damages on the newspaper violated the 

First Amendment, reasoning that the paper had lawfully obtained the 

information from a police report placed in the press room. Id. at 541. 

“[W]here the government has made certain information publicly available, 

it is highly anomalous to sanction persons other than the source of its 

release.” Id. at 535. However, as the Seventh Circuit already observed, 

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Florida Star is distinguishable. The defendant in Florida Star lawfully 

obtained the victim’s name from a publicly-available police report 

whereas here, the Sun-Times obtained the Information “by breaking the 

law.” See Dahlstrom, 777 F.3d at 950. The Seventh Circuit concluded 

that the Sun-Times enjoys no First Amendment right to publish the 

Information because it broke the law. Id. 

The Sun-Times’ argument fails even when the Sun-Times characterizes 

its reliance on the Secretary as a good faith defense. As one court 

recognized, “the express unambiguous language of the DPPA does not create 

a good faith defense or bestow immunity upon those who rely upon state 

agencies to act in compliance with its terms.” Rios v. Direct Mail 

Express, Inc., 435 F. Supp. 2d 1199, 1204 (S.D. Fla. 2006) (citing 18 

U.S.C. §§ 2721–2725). The DPPA establishes liability for both 

governmental actors and private entities. See 18 U.S.C. § 2721 

(prohibiting disclosure by a “State department of motor vehicles”); 18 

U.S.C. § 2722 (prohibiting disclosure by “any person”). Accordingly, 

the Secretary providing the Information to the Sun-Times does not 

immunize Sun-Times from liability. 

Finally, the Sun-Times argues that it did not have the requisite 

intent—“knowingly”—to violate the DPPA because the Sun-Times relied on 

the Secretary’s authorization. But this argument also misses the mark. 

As already mentioned, the “knowingly” element does not require that the 

Sun-Times knew that its obtainment, use, and subsequent disclosure of 

the Information was unlawful. See Pavone, 205 F. Supp. 3d at 967. 

Rather, “[v]oluntary action, not knowledge of illegality or potential 

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consequences, is sufficient to satisfy the mens rea element of the DPPA.” 

Senne v. Vill. of Palantine, 695 F.3d 597, 603 (7th Cir. 2012); see also

Pichler v. UNITE, 542 F.3d 380, 396 (holding that liability under the 

DPPA does not require that a defendant knowingly obtain or disclose 

personal information for a use the defendant knows is unlawful). There 

is no doubt that the Sun-Times knew it was obtaining and disclosing the 

Information. Whether it knew it was doing so unlawfully is irrelevant. 

The Court finds no basis for reconsideration related to the 

Secretary and its alleged authorization to disclose the Information to 

the Sun-Times.

2. Appropriate Degree of Scrutiny

Under the second category, the Sun-Times argues that (1) the 

Supreme Court’s recent decision in Packingham imposes at least 

intermediate scrutiny to the obtainment claim, and (2) the Supreme 

Court’s recent decision in Reed establishes that the DPPA should be 

treated as a content-based statute, thus requiring strict scrutiny of 

the disclosure claim. The Court finds neither case applicable. 

The Court turns first to the obtainment claim. In Packingham, the 

Supreme Court considered a law that prohibited sex offenders from 

accessing private social networking websites. 137 S. Ct. at 1733. The 

Supreme Court applied intermediate scrutiny under an assumption that the 

law was content-neutral. Id. at 1736. To survive intermediate scrutiny, 

“a law must be ‘narrowly tailored to serve a significant government 

interest.’” Id. (quoting McCullen v. Coakley, 134 S. Ct. 2518, 2534 

(2014)) (internal quotation marks omitted). Applying such scrutiny, the 

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Supreme Court determined that the government has a legitimate interest 

in public safety (e.g., protecting children from sexual predators) but 

said interest could not justify broad prohibitions, such as barring 

access “not only to commonplace social media websites but also to 

websites as varied as Amazon.com, Washingtonpost.com, and Webmd.com.” 

Id. Moreover, the Supreme Court was not swayed by the lower court’s 

finding that “adequate alternative means of communication” existed for 

the offenders. Id. at 1375. The Supreme Court thus held the law 

unconstitutional because “to foreclose access to social media altogether 

is to prevent the user from engaging in the legitimate exercise of First 

Amendment rights.” Id. at 1737. 

Here, the Sun-Times argues that Packingham, which came after the 

Seventh Circuit’s ruling in this case, requires intermediate scrutiny 

on all access restrictions such as the DPPA’s prohibition on obtainment. 

The Sun-Times also emphasizes that, like the Supreme Court, this Court 

should not be swayed by alternative means to access the Information. 

See Id. at 1735. So, the fact that “much of [the information] can be 

gathered from physical observation of the Officers or from other lawful 

sources” should not serve as a hurdle for applying such higher scrutiny. 

See Dahlstrom, 777 F.3d at 948. 

Contrary to the Sun-Times’ beliefs, Packingham is distinguishable 

and intermediate scrutiny does not apply here. Restricting an 

individual’s access to social media is a far cry from restricting access 

to personal information from motor vehicle records. “Peering into public 

records is not part of the ‘freedom of speech’ that the [F]irst 

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[A]mendment protects. ‘There is no constitutional right to have access 

to particular government information, or to require openness from the 

bureaucracy.’” Dahlstrom, 777 F.3d at 947 (citing Travis v. Reno, 163 

F.3d 1000, 1007 (7th Cir. 1998) (quoting Houchins v. KQED, Inc., 438 

U.S. 1, 14 (1978) (plurality opinion))). Moreover, the Seventh Circuit 

held that the DPPA’s restriction on obtaining driver motor vehicle 

information “is not a restriction on speech at all.” Id. at 949. As 

such, the Sun-Times’ reliance on Packingham, along with Brown v. 

Phillips, 801 F.3d 849, 853 (7th Cir. 2015) (finding that banning Rrelated movies for sex offenders violated the First Amendment under the 

rational basis test), is misplaced. Intermediate scrutiny does not apply 

to the obtainment claim and, as established above, the government’s 

interest in public safety is rationally related to prohibiting the 

obtainment of personal information in motor vehicle records. The SunTimes’ argument thus fails.

As for the disclosure claim, the Sun-Times argues that the Supreme 

Court and Seventh Circuit now require heightened scrutiny of certain 

content-neutral statutes nevertheless deemed content-based, citing Reed 

v. Town of Gilbert, 135 S. Ct. at 2231 (holding that the Sign Code — a 

comprehensive code governing the manner in which people may display 

outdoor signs — was content-based and thus subject to strict scrutiny) 

and Norton v. City of Springfield, 806 F.3d 411 (7th Cir. 2015) (holding 

that the city’s anti-panhandling ordinance was not content-neutral and 

thus violated the First Amendment). The Sun-Times argues that under 

Reed, the DPPA falls in the class of content-neutral statutes now 

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considered content-based, thus demanding an application of strict 

scrutiny. The Sun-Times also points to Norton, specifically, to 

demonstrate that the Seventh Circuit has already reversed its position 

on such content-neutral regulations in light of Reed. The Sun-Times’ 

application of these cases, however, is mistaken. 

In Reed, the Supreme Court emphasized that regardless whether laws 

“defin[e] regulated speech by particular subject matter” or “by its 

function or purpose,” these defining characteristics are “[b]oth 

distinctions drawn based on the message a speaker conveys, and therefore, 

are subject to strict scrutiny.” 135 S. Ct. at 2227. The Supreme Court 

also recognized an additional category of laws, though content neutral, 

that must be considered content-based: “laws that cannot be justified 

without reference to the content of the regulated speech, or that were 

adopted by the government because of disagreement with the message [the 

speech] conveys.” Id. (citing Ward v. Rock Against Racism, 491 U.S. 

781, 791 (1989)) (internal quotation marks omitted). The Supreme Court 

ultimately considered the Sign Code content-based because it defined 

categories of temporary, political, and ideological signs on the basis 

of their messages and then subjected each category to different 

restrictions for sign placement. Id. Those restrictions applied thus 

depended “entirely on the communicative content of the sign.” Id; see 

also Norton, 806 F.3d at 412 (citing Reed, 135 S.Ct. at 2227) (finding 

similarly post-Reed that “regulation of speech is content based if a law 

applies to particular speech because of the topic discussed or the idea 

or message expressed”).

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The Sun-Times’ reliance on Reed and Norton is unfounded. The SunTimes argues that the DPPA falls within the Reed-defined category of 

content-neutral laws considered content-based because determining 

whether something constitutes personal information requires looking at 

the content of the speech, i.e., the information provided in the motor 

vehicle records. The Court disagrees. Although it is true that one 

must look to the information in dispute to determine whether it 

constitutes “personal information” under the DPPA, such information is 

not “content” for purposes of the First Amendment, and it is not 

something the government has disagreed with because of the “message [it] 

conveys.” See Reed, 135 S. Ct. at 2227 (citation omitted). The Seventh 

Circuit made clear in this case that “the DPPA is content neutral because 

its public safety goals are ‘unrelated to the content of [the regulated] 

expression.’” Dahlstrom, 77 F.3d at 950. Finally, the DPPA regulates 

source—motor vehicle records—and not subject matter. Id. “The Supreme 

Court has concluded that disclosures that are prohibited ‘by virtue of 

the source, rather than the subject matter’ are easily categorized as 

content neutral,” and thus subjected to intermediate scrutiny. Id.

(citing Bartnicki, 532 U.S. at 526). So, the DPPA does not fall into the 

Reed-defined category of content-neutral statutes now considered 

content-based. As discussed, the DPPA is distinguishable from this new 

category mentioned in both Reed and Norton. The Sun-Times’ argument 

thus fails, and strict scrutiny of the disclosure claim is unwarranted. 

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The Court finds no basis for reconsideration in light of the Supreme 

Court’s rulings in Packingham or Reed, nor in the Seventh Circuit’s 

holding in Norton.

3. Discovery and the Balancing Test

Finally, under the third category, the Sun-Times argues that new 

evidence uncovered in discovery—specifically, the depositions of the 

Sun-Times’ reporters and Plaintiffs—shifts the balance of interests in 

Sun-Times’ favor. 

As a content-neutral restriction, Section 2722(a)’s limitation on 

disclosure is subject to intermediate scrutiny. The Section thus passes 

muster if it “furthers an important or substantial government interest; 

if the governmental interest is unrelated to the suppression of free 

expression; and if the incidental restriction on alleged First Amendment 

freedoms is no greater than is essential to the furtherance of that 

interest.” Dahlstrom, 777 F.3d at 952 (citing Turner Broad. Sys., Inc. 

v. FCC, 512 U.S. 622 (1994)).

The Sun-Times argues that in light of new evidence uncovered in 

discovery, the Court should reevaluate the balance between the 

government’s interest in privacy and the Sun-Times’ interest in 

publishing a matter of public significance. First, the Sun-Times offers 

the depositions of Tim Novak and Chris Fusco—two of its own reporters—

who assert that the Information was necessary to contrast two lineup 

photos: the lineup with fillers and another with Vanecko’s friends 

present during the night of Koschman’s death. The Sun-Times argues that 

these depositions demonstrate that publishing the Information was a far 

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greater matter of public significance than the Seventh Circuit concluded. 

Second, the Sun-Times asserts that Plaintiffs’ depositions reveal that 

none of the officers admit to privacy concerns related to the publication 

or disclosure of the Information. The Sun-Times argues that these 

officers’ depositions thus diminish the government’s alleged interests 

in the balance. In sum, the Sun-Times contends that the proffered 

discoveries now tip the balance of interests in its favor. The Court 

disagrees. 

The Sun-Times fails to proffer any arguments or evidence that 

controverts the Seventh Circuit’s balancing of the interests at issue. 

As the Seventh Circuit elaborated in detail:

Although the Sun-Times article relates to a matter of public 

significance — the allegation that the [CPD] manipulated a 

homicide investigation — the specific details at issue are 

largely cumulative of lawfully obtained information published 

in that very same article, and are therefore of less pressing 

public concern than the threats of physical violence in 

Bartnicki. While Sun-Times provided details of the Officers’ 

physical traits to highlight the resemblance between the 

“fillers” and Vanecko, most of the article’s editorial force 

was achieved through publication of the lineup photographs 

that Sun-Times obtained through its FOIA request — the value 

added by the inclusion of the Officers’ personal information 

was negligible. Each Officers’ height is evidence from the 

lineup photographs, while their weights and ages are relevant 

only to the extent that they increase the Officers’ 

resemblance to Vanecko — a resemblance that the photographs 

independently convey. And, although identifying the Officers’ 

hair and eye colors may add some detail to the published 

black-and-white photographs, their personal information is 

largely redundant of what the public could easily observe 

from the photographs themselves. Therefore, Sun-Times’s 

publication of the Officers’ personal details both intruded 

on their privacy and threatened their safety, while doing

little to advance Sun-Times’s reporting on a story of public 

concern.

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Dahlstrom, 777 F.3d at 953. The Sun-Times argues that the Seventh 

Circuit failed to consider that the Information was published to compare 

the first lineup with a second. On this score, the Court notes that the 

second lineup photo with Vanecko’s friends fails to include the type of 

information provided with the first lineup and at issue in this case 

(i.e., birthdate, height, weight, hair color, and eye color). 

Regardless, the Court fails to see how the Sun-Times’ proffered evidence 

changes the Seventh Circuit’s analysis. With or without the Information, 

the Sun-Times’ readers may infer similar findings from viewing the two 

lineup photos side-by-side: (1) that the “fillers” very much resembled 

Vanecko in physical appearance in the first lineup photo, and (2) the 

second lineup photo, where Vanecko and his friends are sitting down, 

conceals physical disparities in height and weight. The inclusion of 

the Information, even after considering the second lineup photo, is 

“largely cumulative.” Id.

The fact that the police officers did not admit to any privacy 

concerns from the publication of the Information is irrelevant. The 

government’s interests in promulgating a law has nothing to do with 

whether those interests are maintained or realized by those the law 

happens to protect. Additionally, other interests, such as “removing 

an incentive for parties to unlawfully obtain personal information in 

the first place” and “minimizing the harm to individuals whose personal 

information has been illegally obtained” counsel in favor of the 

government, regardless of whether the privacy interests are heeded. Id.

at 952. The Court thus concludes that the Seventh Circuit’s analysis 

Case: 1:12-cv-00658 Document #: 124 Filed: 09/27/18 Page 18 of 19 PageID #:1059
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controls and the Sun-Times has failed to show that there has been a shift 

of balance in its favor. 

The Court finds no basis for reconsideration in light of the newlyproduced evidence.

III. CONCLUSION

For the reasons stated herein, Plaintiffs’ Motion for 

Reconsideration (ECF No. 112) is granted, and Defendant’s Motion for 

Reconsideration (ECF No. 110) is denied. As such, the Court enters 

judgment for Plaintiffs on all claims.

IT IS SO ORDERED.

Harry D. Leinenweber, Judge

United States District Court

Dated: 9/27/2018

Case: 1:12-cv-00658 Document #: 124 Filed: 09/27/18 Page 19 of 19 PageID #:1060