VIA EMAIL ONLY

June 7, 2023

David C. Fixler, Esquire

Greenberg, Traurig, LLP

Counsel for the Providence Journal

Claire Richards, Esquire

Executive Counsel, Office of the Governor

Dear Attorneys Fixler and Richards:

We have completed our investigation into the Access to Public Records Act (“APRA”) Complaint filed by The Providence Journal (“Complainant”) against the  Office of the Governor (“Governor’s Office”). For the reasons set forth herein, we find that the Governor’s Office did not violate the APRA.

“Any list or database that shows which individuals have been assigned/issued a ‘preferred plate’ from January 1, 2021 to the present day. If no such list exists, I would like to receive copies (preferably in a digital format) of each individual order/directive/communication regarding preferred plates that has been sent to the RI DMV from January 1, 2021 to the present day.”[1]

The Governor’s Office responded to the request acknowledging that it “maintains a database that shows which individuals have been assigned/issued preferred plates. It also maintains communications with constituents and DMV regarding citizens’ requests for particular preferred plates.” However, the Governor’s Office declined to disclose either the database or the communications, stating that these records were “protected from disclosure by the federal Driver’s Privacy Protection Act of 1994, 19 U.S.C. § 2721, et seq. *** and by state law, R.I. Gen. Laws § 27-49-3.1.” The Governor’s Office also denied the Complainant’s request on the grounds that disclosure of this information “would constitute an invasion of personal privacy,” “would not be made available by law or rule of court to an opposing party in litigation,” and because the communications constituted “correspondence to or from elected officials.” See R.I. Gen. Laws §§ 38-2-2(4)(A)(I)(b), 38-2-2(4)(E), 38-2-2(4)(M).   

Dissatisfied with the response of the Governor’s Office, the Complainant filed a Complaint with this Office challenging the withholding of the documents in their entirety. The Complainant argues that the Governor’s Office’s reliance on the Driver’s Privacy Protection Act (“DPPA”) and the Rhode Island statutory equivalent is misplaced as the DPPA only applies to a state DMV or “any officer, employee or contractor” of a DMV and prohibits disclosure of “personal information obtained from searches of motor vehicle records.” (Emphasis in original). The Complainant maintains that the Governor’s Office is “an agency separate and apart from the DMV” and that “the information at issue is collected and maintained by the Governor’s Office,” not gleaned from a search of a motor vehicle record. Accordingly, the Complainant argues that the DPPA and its state equivalent do not apply and thus R.I. Gen. Laws § 38-2-2(4)(E) is inapplicable.

Next, the Complainant contends that disclosure of the database would not constitute a “clearly unwarranted invasion of personal privacy” as the Complainant seeks “a list of names of those individuals who have been issued Preferred Plates” and there is a “significant public interest in helping Rhode Island citizens understand what appears to be an opaque and selective process facilitated by the Governor’s Office that favors the politically well-connected.”

Finally, the Complainant maintains that the Governor’s Office’s reliance on R.I. Gen. Laws § 38-2-2(4)(M) to withhold communications  with constituents is “superfluous” because “disclosure of the database listing the same information is alone sufficient to satisfy the request” and the exemptions cited by the Governor’s Office to withhold this database are “inapplicabl[e].”

The Governor’s Office submitted a substantive response through its Executive Legal Counsel, Claire Richards, Esquire, which included an affidavit from David Barricelli, Director of Constituent Services for the Governor’s Office. The Governor’s Office argues that the DPPA and its state equivalent apply to the instant request because the Governor’s Office “perform[s] certain DMV functions” in relation to preferred plates. The Governor’s Office maintains that it “possesses spreadsheets of preferred license plates that it has approved for issuance by the DMV (“Preferred License Plate Orders”) ***. The Preferred License Plate Orders contain the name of the person to whom the license plate will be issued, that person’s address, telephone number and e-mail address (if available), the preferred plate to be issued and the DMV branch pick up location.” (Parentheticals in original). Accordingly, the Governor’s Office argues that “the Journal’s request for the names of people who have received preferred plates from the DMV are squarely within the privacy protections afforded by both the federal and state driver’s privacy acts.”

The Governor’s Office further argues that “[t]hrough its preferred plate program, the DMV subcontracts a small portion of its overall motor vehicle registration operation to the Governor’s Office. As such, the Governor’s Office – when it performs these functions – is acting as an agent or subcontractor of the DMV. Both the federal and state driver’s privacy protection laws prohibit the disclosure of personal information by subcontractors of the DMV, like the Governor’s Office, just as it clearly prohibits disclosure by the DMV itself.” The Governor’s Office also argues that R.I. Gen. Laws § 38-2-2(4)(E) applies as “the records are deemed confidential by federal and state driver’s privacy laws.”

Next, the Governor’s Office argues that the requested information is also prohibited from disclosure by R.I. Gen. Laws § 38-2-2(4)(A)(I)(b)[2] as “[t]he individual names of people to whom preferred plates are issued by the DMV – have already been identified by the Congress of the United States as well as by the Rhode Island General Assembly as requiring protection from disclosure. These lawmakers have decided that disclosure of personal information connected to a driver’s motor vehicle record constitutes an unwarranted invasion of personal privacy and, at least on the federal side, have imposed criminal and civil fines for any violation.” Additionally, when applying the balancing test under R.I. Gen. Laws § 38-2-2(4)(A)(I)(b), “the kind of information requested has already been identified by federal and state law as the type of information that should remain private. This policy determination tips the balance squarely in favor of protecting the personal information of individual motor vehicle records, including the names of those people who receive preferred plates.”

We acknowledge Complainant’s rebuttal.

In response to this Office’s request for supplemental information, the Governor’s Office further explained the process for receiving, reviewing, and issuing preferred plates. According to the Governor’s Office, a person seeking a preferred plate may go to the “Preferred Plates” section on the DMV website, which explains “preferred plates are requested through the Office of the Governor and supplies a mailing address, phone number, fax number and e-mail address for the Governor’s Office,” as well as an online application that redirects the applicant to the Governor’s Office website. When using the application, “[t]he applicant is required to provide her address, driver’s license number, phone, e-mail address, and branch location for pick up as well as any ‘comments/additional requests.’” Once an application is received, the “Governor’s Office staff determines from a master list whether any of the preferred plates requested by the applicant are available.” If so, the Governor’s Office periodically transmits the Preferred License Plate Orders to the DMV for issuance. The Governor’s Office provided a mock-up example of the Preferred License Plate Order for December 14, 2022 for our review. This example consists of an Excel Spreadsheet with columns for Notes, Plate number, Plate type, License number, Last Name, First Name, Address, City, State, Zip code, Phone number, Email and Pick Up Locations.

The Governor’s Office also provided additional information explaining the relationship between the Governor’s Office and the DMV regarding the preferred plate approval process. Specifically, the Governor’s Office stated that the “DMV is a division of the Rhode Island Department of Revenue (DOR), with the Administrator of the DMV reporting to the Director of DOR *** the Director of DOR, in turn, reports to the Governor and serves at his pleasure.” See R.I. Gen. Laws §§ 42-142-1(e), 42-142-1(b).

When we examine an APRA complaint, our authority is to determine whether a violation of the APRA has occurred.  See R.I. Gen. Laws § 38-2-8. In doing so, we must begin with the plain language of the APRA and relevant caselaw interpreting this statute.

The APRA provides that all records maintained by public bodies are subject to public disclosure unless the document falls within one of the twenty-seven (27) enumerated exemptions. See R.I. Gen. Laws § 38-2-2(4)(A)-(AA).

Among those exemptions, the APRA exempts from disclosure “[a]ny records which would not be available by law or rule of court to an opposing party in litigation.” R.I. Gen. Laws § 38-2-2(4)(E). The Governor’s Office relies on the DPPA and R.I. Gen. Laws § 27-49-3.1 to support its use of Exemption (E).[3] The Driver’s Privacy Protection Act of 1994, 18 U.S.C.A. §§ 2721-2725 states, in pertinent part:

 18 U.S.C. §2721. Prohibition on release and use of certain personal information from State motor vehicle records.

(a) In general.  A State department of motor vehicles, and any officer, employee, or contractor thereof, shall not knowingly disclose or otherwise make available to any person or entity:

(1) personal information, as defined in 18 U.S.C. § 2725(3), about any individual obtained by the department in connection with a motor vehicle record, except as provided in subsection (b) of this section; or

18 U.S.C. § 2725

In this chapter—

(1) “motor vehicle record” means 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;

(2) “person” means an individual, organization or entity, but does not include a State or agency thereof;

(3) “personal information” means 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[.]

Congress enacted the DPPA “as a response to privacy and safety concerns arising from easy access to the information contained in state motor vehicle department records as well as to the common practice in many states of generating revenue by selling that information. The DPPA generally restricts and regulates disclosure by state departments of motor vehicles and their agents of drivers’ personal information without their affirmative consent, except for a number of statutorily defined permissible uses, such as situations involving government functions or motor vehicle safety or theft. See Deborah F. Buckman, JD, Annotation, Validity, Construction, and Application of Federal Driver’s Privacy Protection Act, 18 U.S.C.A. §§ 2721 to 2725, 183 A.L.R. Fed. 37 (2003).

Rhode Island General Laws § 27-49-3.1 implements the DPPA in Rhode Island and is substantively analogous to its federal counterpart.[4]

As described in Mr. Barricelli’s affidavit, the practice of the Governor’s Office issuing preferred plates has apparently been in existence since at least Governor Bruce Sundlun, if not before. Since 1991, it appears that thousands of Rhode Islanders have taken advantage of this program.[5] Despite the fact that this practice has been in existence for over thirty years, neither party has pointed us to any statutory authority or DMV regulation that clarifies the Office of the Governor’s authority to issue these plates, and we found none.  But the propriety or wisdom of the preferred plate program is not within the purview of this Office’s review under the APRA. Rather our authority is limited to deciding whether, insofar as the Governor’s Office effectively stands in the shoes of the DMV with respect to the issuance of this category of license plates, the personal information it obtains in connection with these motor vehicle records is protected by the DPPA and its state equivalent.    

The Governor’s Office first argues that the DPPA and its state equivalent support the nondisclosure of the preferred plate database because, “[t]hrough its preferred plate program, the DMV subcontracts a small portion of its overall motor vehicle registration operation to the Governor’s Office.” (Emphasis added). Accordingly, it argues, the DPPA’s prohibition against “any officer, employee, or contractor” of a state department of motor vehicles releasing “personal information” obtained by the department in connection with a motor vehicle record applies to it.  18 U.S.C. § 2721(a).  In its supplemental response, however, the Governor’s Office pivots and argues that it “has reserved for itself the exclusive authority to perform certain DMV functions related to these plates, specifically approving their issuance to people who have requested them.”  The Governor’s Office points to the fact that the DMV is a division of the Department of Revenue and the Governor appoints both the Director of the Department of Revenue and the Administrator of the DMV, both of whom report to the Governor.  The Governor’s Office additionally argues that “both are agencies under the Governor’s control engaged in shared functions and responsibilities with the Governor’s Office.”

Neither the DPPA nor its Rhode Island equivalent provide definitions as to what an “officer, employee or contractor” of the DMV means within the context of the statute. It is well settled that “in the absence of statutory definition or qualification the words of a statute are given their ordinary meaning.” Powers v. Warwick Pub. Sch., 204 A.3d 1078, 1086 (R.I. 2019). While it is quite clear that Governor’s Office personnel are not employees of the DMV, whether the relationship of the Governor’s Office to the DMV is that of a contractor or an officer is less clear.  As the Chief Executive, the Governor is in a position of command or authority over the DMV.  But whether Governor Office personnel involved in the administration of this program are best described as “officers” or “contractors” of the DMV is of little import. With respect to this category of license plates, the Governor’s Office effectively stands in the shoes of the DMV.

“One of the most basic interpretive canons” of statutory interpretation is that judicial bodies should strive to effectuate the legislative intent, while avoiding construing a statute to reach an absurd result. Bucki v. Hawkins, 914 A.2d 491, 497 (R.I. 2007) (“This Court makes every effort to effectuate the legislative intent, while avoiding construing a statute to reach an absurd result.”) (citing State v. Menard, 888 A.2d 57, 60 (R.I. 2005)); see also In re Brown, 903 A.2d 147, 1498 (R.I. 2006) (“It is equally a fundamental maxim of statutory construction that statutory language should not be viewed in isolation.”) Here, the DPPA’s clear intent was to broadly protect from disclosure personal information that is obtained by (1) a state department of motor vehicles in connection with a motor vehicle record, 18 U.S.C. § 2721(a), or (2) disclosed to a government agency by the DMV “in carrying out its function.” 18 U.S.C. § 2721(b). The DPPA prohibits “redisclosure” of personal information covered by the statute other than “for a use permitted under subsection (b)” subject to certain exceptions not relevant here. 18 U.S.C. § 2721(c).  

What all this amounts to is that regardless of whether the Governor’s Office obtained these records as an agent or officer of the DMV under § 2771(a), or “for use by a government agency” under subsection (b), this personal information was obtained in connection with a motor vehicle record, to wit a motor vehicle registration. To hold otherwise would subject the DPPA to the vagaries of state motor vehicle registration procedures, or agency structures, which was clearly not the intent of Congress. We agree with the Governor’s Office that “[i]t makes little sense to condition a driver’s right to privacy in her motor vehicle records on the agency of state government that processes her request for a license plate.” For instance, if the application for preferred plates resided on the DMV’s website and the DMV then forwarded the information to the Governor’s Office for determination, before the plate assignment was returned to the DMV so that it could issue the preferred plate, we would have little difficulty finding that the information was protected from disclosure.  It makes little sense then to find that this information loses its protection under the DPPA simply because the procedure that was adopted by the Governor’s Office, and acquiesced to by the DMV, directed the applicant to submit the information to the Governor’s Office directly. Either way, the DMV ultimately obtained the information in connection with a motor vehicle record.

Accordingly, while we note that the unique arrangement between the Governor’s Office and the DMV was apparently not one contemplated by the DPPA, and offering no opinion as to the arrangement’s propriety, we are persuaded, on balance, that the DPPA and its Rhode Island counterpart prohibit the disclosure of this information. The Governor’s Office did not violate the APRA by withholding the responsive records on this basis.  Having found that the DPPA and Rhode Island law prohibit release of this information, we need not consider the applicability of the balancing test pursuant to Exemption A(I)(b).