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

I. BACKGROUND

Five City of Chicago policemen brought this action against 

the Sun-Times, a Chicago newspaper, for violation of the federal 

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

et seq. They allege that the Sun-Times, in violation of the 

DPPA, obtained and published each Plaintiff’s birthdate, height, 

weight, hair color and eye color from the Illinois Secretary of 

State’s motor vehicle records. The Sun-Times’ purpose for 

obtaining this information was to prove that the Chicago police 

manipulated a homicide investigation in a high-profile case 

involving Mayor Richard M. Daley’s nephew, Richard Vanecko

(“Vanecko”). The police had conducted a line-up using the five 

Plaintiff officers as fillers which the Sun-Times thought was 
unfair because the five officers closely resembled Vanecko. As 

a result, a witness was unable to identify Vanecko and the 

charges were subsequently dropped against him. The Sun-Times 

published the personal information along with photographs of the 

Plaintiffs in both its paper and on-line editions to show that 

the five Plaintiffs closely resembled Vanecko. 

The Sun-Times moved to dismiss this case on two grounds: 

that the information was not “personal information” within the 

meaning of the DPPA, and the statute’s prohibition on obtaining 

and disclosing personal information obtained from the driving 

records violates the First Amendment. In denying the Motion to 

Dismiss, this Court determined the challenged information was 

indeed personal information under the DPPA and the acquisition 

and publication of the information violated the Act, and the act 

as applied did not violate the Sun-Times’ First Amendment 

rights. 

The Sun-Times was granted an interlocutory appeal to the 

Seventh Circuit Court of Appeals. The Court reviewed this 

Court’s ruling de novo and concluded that the information 

obtained was personal information under the DPPA, and the SunTimes possessed no constitutional right, either to obtain the 

officers’ personal information from the motor vehicle records, 

or to publish the unlawfully obtained information. Thus the 

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Court affirmed this Court’s denial of the Sun-Times Motion to 

Dismiss.

After remand, the Sun-Times filed an Answer to the 

Complaint together with nine affirmative defenses. The 

Plaintiffs have now moved for judgment on the pleadings in their 

favor. They have also moved to dismiss the nine affirmative 

defenses, or, in the alternative, to have them stricken. 

Plaintiffs have also moved for a protective order limiting 

discovery to the issue of whether the Sun-Times violated the 

DPPA.

II. DISCUSSION

The Plaintiffs’ position on their Motion is straight 

forward. The Seventh Circuit opinion left nothing to be decided

other than whether to issue an injunction (which the Plaintiffs 

seem to have dropped because they do not pray of an injunction 

in this Motion for Judgment). Specifically the Court held that 

the “Sun-Times violated the Act when it knowingly obtained the 

Officers’ personal details from the Illinois Secretary of State 

and proceeded to publish them.” Dahlstrom v. Sun-Times Media, 

LLC, 777 F.3d 937, 946 (7th Cir. 2015). The Court further 

stated with respect to the balancing between the privacy 

interest and a matter of public significance:

We conclude, however, that the balance in the instant 

case tips in the opposite direction. Although the 

Sun-Time article relates to a matter of public 

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significance — the allegation that the Chicago Police 

Department manipulated a homicide investigation — the 

specific details at issue are largely cumulative of 

lawfully obtained information published in that very 

same article, and are thereof of less pressing public 

concern than the threats of physical violence in 

[Bartnicki v. Vopper, 532 U.S. 514, 536 (2001)]. 

Dahlstrom, 777 F.3d at 953.

However, the Court went on to say that there could be a 

“scenario involving lesser privacy concerns or information of 

greater public significance [where] the delicate balance might 

tip in favor of disclosure. Id.

The Sun-Times, on the other hand in its Answer and 

Affirmative Defenses, wants to reargue all of the same points 

that it argued before the Seventh Circuit, i.e., first 

amendment, prior restraint, due process, lack of privacy 

interest, and public safety (some are couched in new terms: the 

rule of lenity and constitutional avoidance). The Sun-Times, in 

addition, raises champerty, maintenance, and Barratry contending 

that the Fraternal Order of Police is financing the lawsuit, 

providing the lawyers, and expects some remuneration if 

Plaintiffs are successful. The Sun-Times also argues that it is 

entitled to all reasonable inferences in its favor as the nonmovement when assessing its answer and affirmative defenses.

Fail-Safe v. A.O. Smith Corp., 674 F.3d 889, 892 (7th Cir. 

2012).

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In response to Plaintiffs’ Motion, the Sun-Times makes 

three principal arguments. First, with respect to balancing the 

Plaintiffs’ privacy interests versus the public interest in 

disclosure of the manipulation of the Vanecko investigation, the 

Answer and First Affirmative Defense require a different outcome 

because it appears that at the time the Sun-Time requested and 

obtained the Plaintiffs’ personal information, it only had the 

names of the Plaintiffs and did not have the lineup photographs. 

Thus, the personal information was not “cumulative” at the time 

it requested the personal information from the Secretary of 

State and balancing between the interests requires a different 

outcome. Second, the Sun-Times contends that it obtained the 

personal information from the Secretary of State’s press office 

rather than from the Department of Motor Vehicles (the “DMV”). 

Thus it lacks knowledge of whether the Secretary of State 

assessed the DMV records when it disclosed the Plaintiffs’ 

personal information to it. 

Third, the Sun-Times argues that obtaining and publishing 

the personal information fits within the DPPA’s non-disclosure 

exception with respect to matters in the interest of “public 

safety.” 

With respect to the Sun-Times’ first argument, there are 

two different issues: first, was the obtaining of the records 

justified by the failure of the police department timely to turn 

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over the line up photographs, the failure of which, in the 

opinion of the Attorney General, constituted a violation of the 

Freedom of Information Act (“FOIA”), and, second, was the 

publication of the personal information, three days after 

obtaining the photographs, allow for different balancing 

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

obtained the Plaintiffs’ personal information it did not have 

the line-up 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 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 SunTimes did have the photographs so that the personal information

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at the time of publication was, as the Seventh Circuit found,

“largely cumulative.”

The Sun-Times second argument, that it obtained the 

information from the Secretary of State’s office rather than 

from the Department of Motor Vehicles, goes nowhere. The 

Department of Motor Vehicles is the Secretary of State. 625 

ILCS 5/6-117 obligates the Secretary of State to “file every 

application for a license or permit accepted under [the Drivers 

Licensing Law] and shall maintain suitable indexes thereof.” 

625 ILCS 5/6-110 obligates the Secretary of State to issue “to 

every qualifying applicant a driver’s license as applied for, 

which license shall bare, inter alia, date of birth, residence 

address, and a brief description of the licensee.” And finally, 

625 ILCS 5/2-123 (F-5) (12), similar to the DPPA, specifically 

authorizes the Secretary of State to disclose or make available 

personally identifying information obtained in connection with a 

driver’s license to members of the news media for news gathering 

purposes only when the request relates to the “operation of a 

motor vehicle or public safety.” Nowhere is the Department of 

Motor Vehicles mentioned. Moreover as Plaintiffs point out, the 

term “public safety” appears over twenty-five times in the 

Illinois Vehicle Code and each relates to motor vehicles, 

drivers, driving violations and other similar subjects relating 

to motor vehicles. There is not a single instance where “public 

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safety” refers to investigations of police misconduct or any

matter of public significance generally. Finally on this point, 

the Sun-Times conceded before the Seventh Circuit that it

“knowingly obtained this additional identifying information from 

the motor vehicle records maintained by the Secretary of State” 

and that Court so found. Consequently, in addition, this is the 

law of the case.

A. First Affirmative Defense

The Court finds that the issues concerning the First 

Affirmative Defense, the “First Amendment,” at this stage with 

respect to the obtaining the personal information presents 

sufficient questions of fact so that the Motion for Judgment on 

the Pleadings is denied, but the Motion is granted insofar as 

publication of the personal information. 

B. Second Affirmative Defense

The Motion for Judgment on the pleadings as to the Second 

Affirmative Defense, “Official Source” is granted. The SunTimes contends that the Secretary of State is charged with 

interpreting the DPPA but there is no basis for that conclusion. 

The DPPA prohibits a person “knowingly to obtain or disclose 

personal information from a motor vehicle record.” The SunTimes acknowledged that it did so. 

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C. Third Affirmative Defense

The Motion for Judgment on the pleadings as to the Third 

Affirmative Defense, “Prior Restraint” is granted as the 

Plaintiffs no longer appear to be seeking an injunction. 

D. Fourth Affirmative Defense

The Motion for Judgment on the pleadings as to the Fourth 

Affirmative Defense, “Illinois Vehicle Code” is granted. The 

gist of this defense is that the DPPA allows disclosure to the 

members of the news media when “the request is related to 

operation of a motor vehicle or public safety.” As stated 

above the request for personal information was not related to 

the operation of a motor vehicle or public safety. 

E. Fifth Affirmative Defense

The Motion for Judgment on the pleadings as to the Fifth 

Affirmative Defense, “No privacy Interest” is granted. The 

basis of this defense is that police officers are public 

officials and thus have no privacy interests. This is directly 

contrary to the Seventh Circuit’s opinion which held that the 

legislative history of the DPPA was “to protect the personal 

privacy and safety of all American licensed drivers.” 140 Cong. 

Rec H2526. The Plaintiffs are apparently licensed drivers and 

are thus covered by the Act.

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F. Sixth Affirmative Defense

The Motion for Judgment on the pleadings as to the Sixth 

Affirmative Defense, “Champerty, Maintenance and Barratry” is 

granted. The basis for this defense is the Sun-Times belief 

that the filing and maintenance of this law suit was solely for 

the purpose of intimidating the press. However, the Sun-Times 

does not cite any cases as to why any such agreement between the 

Plaintiffs and their union would be champertous. English law 

declared a contract of champerty and maintenance void between 

the parties and would not authorize dismissal of a suit pursuant 

to such contract. The question cannot properly arise except in 

a controversy between the parties to the alleged champertous 

agreement or their privies. Torrence v. Shedd, 112 Ill. 466 

(1984). 

G. Seventh and Eighth Affirmative Defenses

The Motion for Judgment on the pleadings as to the Seventh 

Affirmative Defense, “Due Process,” and the Eight Affirmative 

Defense, “Rule of Lenity” is granted. The Sun-Times argues that 

the definition of the term “personal information” is 

impermissibly vague and ambiguous so the DPPA could be 

interpreted to allow the obtaining of personal information such 

as what it sought from the Secretary of State. However as the 

Seventh Circuit held, the intent of Congress in drafting the 

DPPA was to provide an expansive reading of “personal 

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information” and “our interpretation is ‘clear and precise 

enough to give a person of ordinary intelligence fair notice 

about what is required of him.’” Dahlstrom, 777 F.3d at 946. 

Therefore neither due process nor lenity is applicable.

H. Ninth Affirmative Defense

The Motion for Judgment on the pleadings as to the Ninth 

Affirmative Defense, “Constitutional Avoidance” is granted. The 

argument here is that where there are two interpretations of a 

statute, one of which poses constitutional problems and the 

other does not, the court must adopt the construction that does 

not conflict with the Constitution. However, as the Seventh 

Circuit held, its interpretation of the statute does no conflict 

with the Constitution. 

III. CONCLUSION

For the reasons stated herein, the Court rules as follows:

1. The Motion for Judgment on the Pleadings is denied as 

to the claim of obtaining personal information in violation of 

the DPPA. It is granted with respect to publishing the personal 

information; 

2. The Motion for Judgment on the Pleadings is denied as 

to the First Affirmative Defense with respect to obtaining the 

personal information from the Secretary of State and is granted 

with respect to the publication of the personal information; 

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3. The Motion for Judgment on the Pleadings is granted as 

to the Second, Third, Fourth, Fifth, Sixth, Seventh, Eighth, and

Ninth Affirmative defenses; and 

4. The Motion for a Protective Order is granted in part. 

Discovery is limited to the obtaining and publishing of the 

Plaintiffs’ personal information and the issue of damages 

claimed by the plaintiffs. Since Vanecko was subsequently 

indicted, pled guilty, and is currently incarcerated, there is 

no need to retrace all of the manipulation of the Vanecko 

investigation.

IT IS SO ORDERED.

Harry D. Leinenweber, Judge

United States District Court

Dated: September 29, 2016

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