IN THE UNITED STATES DISTRICT COURT

FOR THE NORTHERN 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,

Defendant.

Case No. 12 C 658

Hon. Harry D. Leinenweber

MEMORANDUM OPINION AND ORDER

Defendant Sun-Times Media, LLC (“Sun-Times”) has moved this

Court to certify an Interlocutory Appeal of the Court’s Opinions

dated September 5, 2012 and November 18, 2013. For the reasons

stated herein, the Motion is granted.

I. BACKGROUND

This case, brought by several officers of the Chicago Police

Department (the “CPD”), raises questions concerning the scope and

constitutionality of the Driver’s Privacy Protection Act (the

“DPPA”), 18 U.S.C. § 2722. On April 25, 2004, an altercation arose

between David Koschman (“Koschman”) and R.J. Vanecko (“Vanecko”),

a nephew of Richard M. Daley, then-Mayor of Chicago. The incident
resulted in Koschman’s death, and, in part due to Vanecko’s

political connections, gave rise to a high-profile CPD

investigation. In its investigation, the CPD placed Vanecko in a

lineup with several Chicago police officers of similar age,

complexion, height, and build. Eyewitnesses misidentified some of

the officers as the perpetrator, and the CPD concluded that there

was no case to pursue against Vanecko.

Defendant Chicago Sun-Times did a bit of probing and published

an article that scrutinized the CPD’s lineup procedure. The

article included each “filler” officer’s name (including middle

initial), birth month and year, height, weight, hair color, and eye

color; it used this information to argue that the fillers were too

similar to Vanecko for the lineup to be effective. Apparently,

Defendant obtained the names and photographs through a Freedom of

Information Act (“FOIA”) request, and from there retrieved the

remaining information from the officers’ motor vehicle records. A

state judge, citing several of Defendant’s articles, reopened the

investigation and appointed a special prosecutor to investigate

Koschman’s death. ECF No. 35-1 at 33. In early 2014, Vanecko pled

guilty to involuntary manslaughter. Steve Schmadeke, Daley nephew

Vanecko pleads guilty in Koschman death, Chi. Trib., Feb. 1, 2014,

available at http://articles.chicagotribune.com/2014-02-01/news/

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chi-koschman-vanecko-20140131_1_vanecko-u-s-attorney-dan-webbnanci-koschman.

These filler officers have brought suit, alleging that

Defendant violated the DPPA by publishing their personal

information after obtaining the information from their motor

vehicle records. They seek declaratory relief, money damages, and

an injunction mandating that Defendant remove Plaintiffs’

information from its publications. Defendant moved to dismiss,

arguing that the published information is not “personal

information” within the meaning of the Act and, even if it is,

enforcement of the Act against it would violate the First

Amendment. Defendant also argued that the requested injunction, if

granted, would amount to an impermissible prior restraint on

Defendant’s speech. 

In a Memorandum Opinion and Order dated September 5, 2012, the

Court rejected Defendant’s statutory interpretation argument and

held that “the information that Defendant published falls within

the ambit of ‘personal information’ under the DPPA.” ECF No. 21 at

7. Although Plaintiffs’ names and photographs are unquestionably

“personal information,” 18 U.S.C. § 2725(3), the Court held that

Plaintiffs in this case cannot state a claim as to the disclosure

of their names and photographs because Defendant obtained that

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information from a FOIA request, not from Plaintiffs’ motor vehicle

records. ECF No. 21 at 5-6. The Court afforded the Government an

opportunity to intervene to defend the statute, and when it

declined, the Court accepted supplemental briefing from the parties

on the First Amendment issue. In a second Memorandum Opinion and

Order, dated November 18, 2013, the Court rejected Defendant’s

First Amendment defense on the ground that the DPPA “limits access

to information” but “does not restrict what the press may publish.” 

ECF No. 33 at 5. The Court held further that an injunction

requiring Defendant to remove the internet version of the article

would not constitute a prior restraint. Id. at 6-8. Defendant

seeks permission to apply for interlocutory review of these

rulings. 

II. LEGAL STANDARD

A District Court may certify an otherwise non-appealable order

for interlocutory appeal if the order “involves a controlling

question of law as to which there is substantial ground for

difference of opinion and . . . an immediate appeal from that order

may materially advance the ultimate termination of the litigation.” 

28 U.S.C. § 1292(b). Such appeals are “rarely granted,” Nystrom v.

TREX Co., 339 F.3d 1347, 1351 (Fed. Cir. 2003), and the movant

bears the burden of showing that “exceptional circumstances justify

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a departure from the basic policy of postponing appellate review

until after the entry of a final judgment.” Coopers & Lybrand v.

Livesay, 437 U.S. 463, 475 (1978). But when the statutory criteria

are met, the District Court has a duty to allow the appeal. 

Ahrenholz v. Bd. of Trs. of the Univ. of Ill., 219 F.3d 674, 677

(7th. Cir. 2000).

III. DISCUSSION

This case raises two questions that meet the statutory test

and a third that may be of interest to the Court of Appeals if it

decides to hear the appeal. Before turning to the statutory

criteria, it is worth noting a few other considerations that weigh

in favor of allowing an immediate appeal. Because First Amendment

litigation chills speech, prompt resolution of this case would

provide the added benefit of minimizing any such chilling effect. 

Because this case involves a newspaper and its news gathering

process, discovery could spawn burdensome motion practice or

collateral litigation concerning the newspaper’s sources;

interlocutory review at this stage might eliminate the need for

that discovery. Finally, the case may require third-party

discovery into the CPD’s handling of the Vanecko investigation so

that the parties can argue the constitutional importance of

Defendant’s newsgathering and reporting on that investigation, all

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of which would be unnecessary if this Court is reversed on either

of two issues. These concerns do not replace the criteria in

§ 1292(b) but highlight the additional benefits of prompt,

definitive resolution of the pure legal questions presented in this

case. 

A. Statutory Interpretation

The first question is whether the phrase “personal

information” in the DPPA includes a person’s height, weight, hair

color, eye color, and approximate age. The DPPA makes it unlawful

“for any person knowingly to obtain or disclose personal

information, from a motor vehicle record, for any use not permitted

under Section 2721(b) of this title.” 18 U.S.C. § 2722(a). The

scope of “personal information” is a question of law because it

involves only statutory interpretation. The issue is controlling

because Plaintiffs will have no cause of action if height, weight,

hair color, eye color, and approximate age are not protected by the

statute. Resolution of this issue “may materially advance the

ultimate termination of the litigation” because it might end the

case right away, thereby obviating the need for discovery,

dispositive motions, and a possible trial. 

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As to the last requirement under § 1292(b), that the grounds

for a difference of opinion be substantial, “personal information”

is defined as: 

information that identifies an individual,

including an individual's photograph, social

security number, driver identification number,

name, address (but not the 5-digit zip code),

telephone number, and medical or disability

information, but does not include information

on vehicular accidents, driving violations,

and driver's status.

18 U.S.C. § 2725(3). The Court held that the word “including” in

the statute meant that the items in the list were “illustrative

rather than exhaustive,” and that “personal information” includes

“the information that Defendant published.” ECF No. 21 at 6-7. 

The Court did so in part because dicta in a recent Seventh Circuit

en banc opinion suggested that features such as height and weight

were “personal information” protected by the statute. Senne v.

Village of Palatine, Ill., 695 F.3d 597, 608 (7th Cir. 2012) (en

banc) (“The otherwise protected information actually disclosed here

included [the plaintiff’s] full name, address, driver's license

number, date of birth, sex, height and weight.”). 

But at the same time, all of the items listed in the statute

can be used to identify a person with a very high degree of

particularity, while a person’s height, weight, hair color, eye

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color, and birth month and year are merely descriptive. The DPPA

was designed to remedy “safety and security concerns associated

with excessive disclosures of personal information,” Id. at 607, 

and unlike with a person’s address, phone number, or social

security number, it is not clear how revealing a person’s height or

hair color threatens that person’s safety. The legal question may

turn on what the statute means by “identifies” – does the

information have to refer to that person and that person only (as

with a social security number or driver identification number) or

is it enough for the information to describe a characteristic of

the person that would apply to many other people as well (e.g.,

height, weight, and so on). There is reason to think that the DPPA

does not protect information about a person that is readily

observable, such as height and weight, and thus those facts are

descriptive but not “personal.” These competing interpretations –

both of them defensible and neither of them precluded by binding

precedent – evidence substantial grounds for difference of opinion. 

B. First Amendment

The second question is whether the First Amendment permits an

application of the DPPA that would prevent the news media from

obtaining information from a person’s motor vehicle record and

publishing that information. This issue is a question of law

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because it concerns the interplay of a statute and a constitutional

provision. It may not be a “pure” legal question because the

constitutional challenge is to the statute as-applied, so to some

extent the answer depends on the actions that Defendant is alleged

to have taken. But as with the first issue, this is an appropriate

question for Defendant to pursue in a § 1292(b) appeal because it

is one that “the court of appeals could decide quickly and cleanly

without having to study the record.” Ahrenholz, 219 F.3d at 677. 

As with the statutory interpretation question, this constitutional

issue is controlling because the case must be dismissed if the

First Amendment protects Defendant’s conduct. And for the same

reason, the appeal may “materially advance the ultimate termination

of the litigation” as it could end this case before the parties

proceed to discovery and beyond. 

This issue also provides substantial ground for difference of

opinion. When it denied the Motion to Dismiss, the Court held that

the DPPA does not restrict speech but rather “limits access to

information in that it narrows the purposes for which one may use

personal information obtained from a motor vehicle record.” ECF

No. 33 at 5. The Court based its decision on commentary from the

Seventh Circuit that “[p]eering into public records is not part of

the ‘freedom of speech’ that the first amendment protects.” Travis

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v. Reno, 163 F.3d 1000, 1007 (7th Cir. 1998) (rejecting a facial

challenge to the DPPA because “[t]here is no constitutional right

to have access to particular government information, or to require

openness from the bureaucracy”). Also relevant to the Court’s

decision was the principle that “otherwise valid laws serving

substantial public interests may be enforced against the press as

against others, despite the possible burden that may be imposed.” 

Branzburg v. Caldwell, 408 U.S. 665, 682-83 (1972). Adhering to

this precedent, the Court rejected the First Amendment defense and

denied the Motion to Dismiss. 

At the same time, it is possible that Defendant’s as-applied

challenge could succeed on appeal. At the outset, though this case

does not involve a plaintiff suing for access to a specific record,

it appears to provide the proper adversarial context for an asapplied challenge: it includes both the “particular record” and

“the right defendant” (because the Defendant’s “actions cause[d]

injury”). Travis, 163 F.3d at 1007. More importantly, there is at

least a colorable argument that the DPPA restricts speech, just at

a “different point[] in the speech process.” Citizens United v.

FEC, 558 U.S. 310, 336 (2010). Defendant argues that the DPPA

restricts speech because it restricts its ability to gather and

report on the news. In ACLU of Illinois v. Alvarez, the Seventh

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Circuit invalidated a state eavesdropping law that restricted

“nonconsensual audio recording of public officials performing their

official duties in public.” ACLU of Illinois v. Alvarez, 679 F.3d

583, 597 (7th Cir. 2012). The court explained that the act of

making an audio recording “is necessarily included within the First

Amendment's guarantee of speech and press rights as a corollary of

the right to disseminate the resulting recording.” Id. at 595. 

Unlike with audio recordings, it is probably a stretch to say

that motor vehicle records “enable speech” – hence this Court’s

finding that the law did not trigger First Amendment scrutiny. But

the Seventh Circuit’s decision in Alvarez reaffirmed that “the

First Amendment provides at least some degree of protection for

gathering news and information, particularly news and information

about the affairs of government.” Id. at 597. Defendant in this

case was gathering news and information for subsequent use in its

publication, and that information was related to possible

misconduct by government officials. In fact, this seems to be the

rare case where a government official’s height and weight matter,

as they relate to whether the CPD should have used these officials

as fillers alongside Vanecko. 

In addition, the Alvarez court was especially skeptical of the

government’s idea that the privacy law in that case should not

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trigger any First Amendment scrutiny. Id. at 594 (the government’s

position was “an extraordinary argument”). If this Court is

mistaken and the DPPA does burden speech, then the Court will have

to consider the First Amendment interests at stake, which may weigh

in Defendant’s favor given that Defendant’s article reported on

matters of heightened public concern. Though the Court rejected

Defendant’s argument, the Court recognizes that a relatively minor

change from the Seventh Circuit would require a completely

different analysis and could change the result. For these reasons,

the Court is satisfied that there exists substantial ground for a

difference of opinion on the First Amendment issue. 

C. Prior Restraint

Though the prior restraint issue does not meet the standard in

§ 1292(b), the Court provides a brief discussion of this issue so

that it can address Defendant’s arguments and also for the benefit

of the Court of Appeals, should it wish to review this issue along

with either or both of the preceding issues. It is worth noting

that resolution of the prior restraint issue may materially advance

the litigation: the damages amount at issue is relatively small,

so if an injunction is not available, the parties may find that

they are in a much better position to settle the case. 

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The legal issue presented is whether an order requiring a

newspaper to cease publication of a news article – that is, remove

the article from its website so that it can no longer be accessed

– constitutes a prior restraint on speech. This is a pure question

of law because it does not require the application of any

underlying facts and there is no record to study. However, this

issue is not controlling because Plaintiffs’ request for damages

would stand, even if the injunction is not available. 

In addition, this Court does not see substantial grounds for

a difference of opinion. The Court held that the requested

injunction, if granted, would not amount to a prior restraint

because it would merely “end the ongoing violation of the DPPA.” 

ECF No. 33 at 7. In addition, because the speech at issue has

already taken place, “there can be no concerns about the difficulty

of knowing in advance what an individual will say and whether that

speech will be legitimate or illegitimate.” Id.

Of course, if Defendant’s conduct is protected by the First

Amendment, then Plaintiffs will not obtain any remedy, including an

injunction. Defendant’s argument appears to be that even if its

newsgathering is not protected, the article is protected

nonetheless because it is speech and it is continuing. In this

Court’s view, that argument is untenable for the reasons mentioned

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above. Defendant cites Weinberg v. City of Chicago and notes

correctly that the court in that case found that a licensing scheme

was an impermissible prior restraint because it did not

“sufficiently curtail the discretion of City officials in granting

licenses to peddle.” Weinberg v. City of Chicago, 310 F.3d 1029,

1046 (7th Cir. 2002). But this case does not involve anything

similar, either licensing procedures or a government official’s

unbridled discretion to restrict speech. Thus, the requested

injunction would not violate the laws of prior restraint. 

IV. CONCLUSION

The case presents two questions that satisfy the statutory

criteria and will resolve this case swiftly if the Court’s

decisions are reversed. Therefore, pursuant to 28 U.S.C.

§ 1292(b), the Court hereby certifies the Court’s Opinions dated

September 5, 2012 and November 18, 2013 for Interlocutory Appeal to

the Court of Appeals for the Seventh Circuit. Defendant shall

serve the Government with Notice of its Application. Proceedings

in this Court shall be stayed while the appeal is pending. 

IT IS SO ORDERED.

Dated: April 24, 2014

Harry D. Leinenweber, Judge

 United States District Court

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