AN ACT TO AMEND TITLE 21 OF THE DELAWARE CODE RELATING TO DIVISION OF MOTOR VEHICLES DATA PRIVACY.

Legislation Document

SPONSOR:

Rep. Lynn & Rep. Ortega & Sen. Hoffner & Sen. Pinkney

Reps. K. Johnson, Lambert, Morrison, Phillips, Snyder-Hall, Wilson-Anton, Neal, Berry

HOUSE OF REPRESENTATIVES

153rd GENERAL ASSEMBLY

HOUSE BILL NO. 60

AN ACT TO AMEND TITLE 21 OF THE DELAWARE CODE RELATING TO DIVISION OF MOTOR VEHICLES DATA PRIVACY.

BE IT ENACTED BY THE GENERAL ASSEMBLY OF THE STATE OF DELAWARE:

Section 1. Amend § 305, Title 21 of the Delaware Code by making deletions as shown by strike through and insertions as shown by underline as follows:

§ 305. Privacy act governing the release of motor vehicle driving history and license records.

(a)

In general. —

(1)

Except as provided in subsections (b), (d), (e) and (i) of this section, the Division of Motor Vehicles

(Division)

and any officer,

employee

employee,

or contractor thereof or any other person

shall

may

not knowingly disclose or otherwise make available to any person or entity personal information about any individual obtained by the Division in connection with a motor vehicle record.

(2) Unless otherwise noted, authorization for disclosure under this statute applies only to

Only

driver license and driver performance records which are 3 years old or

less.

less shall be made available to authorized persons or agencies, except persons requesting their own records, law-enforcement officers, the courts and other motor vehicle jurisdictions

The following

may also have access

to those records and

to vehicle title and registration information

which are

that is

over 3 years old and are being retained by the

Division.

Division:

a. Persons requesting their own records.

b. Law-enforcement officers for purposes authorized by this section.

c. Courts.

d. Other motor vehicle jurisdictions for purposes authorized by this section.

(3)

Division motor vehicle records

can

may

be transmitted to other motor vehicle jurisdictions electronically over authorized networks.

(4) a. Except as set forth under paragraph (4)b. of this section, the following information may not be disclosed by the Division:

1. Social security number or lack thereof.

2. Taxpayer identification number or lack thereof.

3. Citizenship or immigration status.

4. Documents or any reproductions thereof that contain or reveal personal information listed in paragraphs (a)(4)a.1. through (a)(4)a.3. of this section.

b. Information in paragraph (a)(4)a. of this section may be shared or disclosed under any of the following conditions:

1. For voter registration purposes.

2. With the specific approval of the Delaware Attorney General.

3. Upon presentation of a valid court order.

4. Where specifically authorized by this section or other state law.

(b)

Permissible uses. —

This subsection on permissible uses is subject to the limitations under subsection (a) of this section.

Personal information referred to in subsection (a) of this section

shall

may

only be disclosed for use in connection with matters of motor vehicle or driver safety and theft; motor vehicle emissions; motor vehicle product alterations,

recalls

recalls,

or advisories; performance monitoring of motor vehicles, motor vehicle

parts

and motor vehicle dealers by motor vehicle manufacturers; maintenance of voter registration records;

and

removal of nonowner records from the original owner records of motor vehicle manufacturers; maintenance of voter registration records to carry out the purposes of the Automobile Information Disclosure Act [15 U.S.C. § 1231 et seq.],

the Motor Vehicle Information and Cost Saving Act [repealed], the National Traffic and Motor Vehicle Safety Act of 1966 [repealed],

the Anti-Car Theft [Act] of 1992 [P.L. 102-519] and the Clean Air Act [42 U.S.C. § 7401 et seq.]. Personal information may be disclosed only upon proof of the identity of the person requesting the record or records and sworn representation by such person that the released personal information will be strictly limited to 1 or more of the following described uses:

(1) For use by any government agency, including any court, state election

agency

agency,

or law-enforcement agency, in carrying out its functions, or any private person or entity acting on behalf of a government agency, in carrying out its functions.

(2) For use in connection with matters of motor vehicle or driver safety and theft; motor vehicle emissions; motor vehicle product alterations,

recalls

recalls,

or advisories; performance monitoring of motor vehicles, motor vehicle

parts

parts,

and motor vehicle dealers; motor vehicle market research activities, including survey research; and removal of nonowner records from the original owner records of motor vehicle manufacturers.

(3) For use in the normal course of business by a legitimate business or its agents,

employees

employees,

or contractors, but only:

a. To verify the accuracy of personal information submitted by the individual to the business or its agents, employees or contractors; and

b. If such information as so submitted is not correct or is no longer correct, to obtain the correct information, but only for the purposes of preventing fraud by pursuing legal remedies against or recovering on a debt or security interest against the individual.

(4) For use in connection with any civil, criminal,

administrative

administrative,

or arbitration proceeding in any federal,

state

state,

or local court or agency or before any self-regulating body, including the service of process, investigation in anticipation of litigation and the execution or enforcement of judgments and orders or pursuant to an order of a federal, state or local court.

(5) For use in research activities and for use in producing statistical reports, so long as the personal information is not published,

redisclosed

redisclosed,

or used to contact individuals.

(6) For use by any insurer or insurance support organization or by a self-insured entity or its agents, employees or contractors, in connection with claims investigation activities, anti-fraud activities, rating or underwriting.

(7) For use in providing notice to the owners or lien holders of towed or impounded vehicles.

(8) For use by any licensed private investigative agency or licensed security service for any purpose permitted under this subsection.

(9) For use by an employer or its agent or insurer to obtain or verify information relating to a holder of a commercial driver’s license that is required under the Commercial Motor Vehicle Safety Act of 1986 (49 U.S.C. § 31101 et seq.).

(10) For use in connection with the operation of private toll transportation facilities.

(11) Persons requesting their own records, law-enforcement officers, judicial and other motor vehicle jurisdictions through the supporting information networks may have access to all records retained by the Division.

(12) [Deleted.]

(13) For any other use specifically authorized under the law of the State that holds the record, if such use is related to the operation of a motor vehicle or public safety.

(c)

Requests for additional protection of personal information. —

A person may submit a notarized affidavit to be supplied by the Division requesting that person’s address, phone

number

number,

and social security number contained in the driver or vehicle records of the Division be kept confidential except from those named in paragraphs (b)(1), (2) and (6) of this section. The affidavit must swear or affirm that the request is being made because of the person’s fear of harm from another individual to themselves, a family or household

member

member,

or their property. A properly submitted notarized affidavit satisfying these conditions

shall

must

be honored by the Division and

shall remain

remains

in effect until the record is purged from the Division’s files or until the requesting person submits written notice requesting the release of that person’s personal information. This section does not prohibit the Division from the normal practice of returning a vehicle title with personal information displayed to a lienholder or lessor. In addition, the Division may return a vehicle title and registration card to a dealership who has submitted the title application for their customer.

(d)

Court approval for release of information. —

Persons

(1) Except as provided in paragraph (d)(2) of this section, persons

or agencies other than those named in subsections (b) and (c) of this section

shall be

are

prohibited from acquiring any information pertaining to an individual’s address, telephone number, vehicle title, vehicle registration, driver

license

license,

and driver performance that is in the possession of the Division of Motor

Vehicles except in the following case:

Vehicles.

(2)

Any

An

individual who can show that there is a lawful need for the prohibited information and that the information cannot be reasonably acquired through any alternate means may present such evidence to the administrative hearing officer of the Division of Motor Vehicles. Upon consideration of the evidence presented, the administrative hearing officer may then in the administrative hearing officer’s discretion provide an order for the release of part or all of the requested information from the Division of Motor Vehicles to the requesting individual.

(3)

In this instance,

If an administrative hearing officer orders the release of requested information,

the Division shall send

notification

by United States mail

notification

to any individuals identified in subsection (c) of this section whose information

has been requested that the administrative hearing officer has ordered the release of such information and that such information will be furnished to the requesting party.

will be released. The notification must inform the individual what information has been ordered to be released and to whom.

(4)

Upon denial of the request,

If an administrative hearing officer denies a request under paragraph (d)(2) of this section,

the

an

individual may file a de novo appeal to the Justice of the Peace Courts. Upon receipt of the application fee of $10 from the individual, the Justice of the Peace Court, in its discretion, may order the release of part or all of the requested information by the DMV to the requesting individual.

The

If the Justice of the Peace Court orders the release of information, the

Division shall

notify the individuals by United States mail if the Justice of the Peace Court orders release of part or all of the requested information.

send notification by United States mail to any individuals identified in subsection (c) of this section whose information will be released. The notification must inform the individual what information has been ordered to be released and to whom.

(h)

Contract to protect confidentiality. —

Governmental agencies,

businesses

businesses,

and individuals designated by subsection (b) of this section to obtain vehicle registration, title, driver’s

license

license,

or driver performance records and obtain such personal information by electronic means

will

must

sign contracts acknowledging their responsibility to protect personal information as follows:

(1) The personal information obtained from the Division’s records will not be resold or redisclosed in part or whole except for those authorized purposes covered in subsection (b) of this section.

(2) [Deleted.]

(i)

Additional conditions. —

(1)

In addition to provision for payment of applicable fees, the Department may, prior to the disclosure of personal information as permitted in this section, require the meeting of certain conditions by the requesting person for the purpose of obtaining reasonable assurance concerning the identity of the person requesting the release of information and, to the extent required, that the use will be only as authorized or the consent of the person who is the subject of the information has been properly obtained. Such conditions may include, but need not be limited to, the making and filing of a written application in such form and containing such information and certification requirements as the Department may prescribe.

(

2)

Governmental agencies,

businesses

businesses,

and individuals who request motor vehicle records by electronic means or who access Division records on a continual basis and are authorized access to the records per subsections (b) through (e) of this section, inclusively, shall sign contracts acknowledging their responsibility to protect personal information under this subsection. The contract will contain this section and the requester will specify, at a

minimum:

minimum, all of the following:

(1)

a.

The legal basis authorizing access to personal data contained in the Division’s

records;

records.

(2)

b.

Purposes and intended uses for this

data;

data.

(3)

c.

Designation of data elements needed to satisfy their

purposes;

purposes.

(4)

d.

Agreement not to disclose the information obtained unless permitted by this

subsection; and

subsection.

e. Agreement not to use or disclose this information for civil immigration enforcement or related purposes.

(5)

f.

Other requirements as deemed necessary by the Division.

(3)

Law enforcement, the courts, other motor vehicle jurisdictions and those governmental agencies and businesses designated by the Secretary of Transportation are exempt from this subsection.

(4)

A person’s driver’s license electronically digitized photograph and signature, Social Security number or medical or disability information

shall not be releasable

may not be released

without the express written consent of the person to whom such information pertains, except for uses permitted under paragraph (b)(1), (b)(6) or (b)(9) of this section. A signed release from the licensee whose information is sought shall constitute a permitted use if notarized. This subsection shall not in any way affect the use of organ donor information on an individual driver’s license or affect the administration of organ donor initiatives by the Division.

(5)

Personal information

shall

may

not be

available

disclosed

by telephone or other methods of request other than by personal appearance and in writing unless approved by the Director of Motor Vehicles or the Director’s designee.

(6)

The Division, in its discretion, may deny access to any or all records if it finds the requesting agency’s or person’s purpose in requesting such information is improper or that the request was made in bad faith.

(7)

The Division will record, but can deny the release of residential addresses to any agency,

business

business,

or person outside of the Division when requested by the court or when law-enforcement documentation proves the person is in immediate danger if this information is released. The record will contain a releasable mailing address to enable the Division and law-enforcement agencies to contact that individual.

(8)

The Director may destroy any records of the Division which have been maintained on file for 3 years, unless otherwise required by this title, which the Director may deem obsolete and of no further service in carrying out the powers and duties of the Division; provided, that the Director of the Division of Historical and Cultural Affairs has authorized such destruction.

(9)

Any record or certified record supplied by the

Department

Division

pursuant to this title shall contain the signature or facsimile signature of the Director or of another official of the Division who is a custodian of such records and is designated by the Director to sign such records or have his or her signature affixed. For purposes of this subsection, a “facsimile signature” can be a preprinted signature, a rubber stamped signature or any other recognized facsimile.

(j)

Wrongful disclosure. —

If the Division discovers at any time that any information protected under subsection (c) of this section has been wrongfully disclosed, it shall notify the holder of that information that the information was wrongfully disclosed and may not be used,

resold

resold,

or redisclosed in any way. The Division shall also inform the person who the information pertains to that the person’s personal information was disclosed.

(k)

Resale or redisclosure. —

(1) An authorized recipient of personal information may resell or redisclose the information for any use permitted under subsection (b) of this section.

(2) [Deleted.]

(3) Any authorized recipient who resells or rediscloses personal information shall be required by the Department to maintain, for a period of not less than 5 years, records as to the information obtained and the permitted use for which the information was obtained and to make such records available for inspection by the Department, upon request.

(

l

)

Regulations and waiver procedure. —

The Department is authorized to adopt administrative regulations to carry out the purposes of this section. The regulations may include procedures under which the Department, upon receiving a request for personal information that is not subject to disclosure, may mail a copy of such request to each individual who is the subject of the information, informing such individual of the request, together with a statement to the effect that disclosure is prohibited and will not be made unless the individual affirmatively elects to waive such individual’s right to privacy under this section.

(m)

Unlawful acts. —

(1)

Procurement for unlawful purposes. —

It

shall be

is

unlawful for any person knowingly to obtain or disclose personal information from a motor vehicle record for any use not permitted under this title.

(2)

False representation. —

It

shall be

is

unlawful for any person to make false representation to obtain any personal information from an individual’s motor vehicle record.

(n)

Penalties. —

Any person requesting the disclosure of personal information from Department records who misrepresents the person’s identity or knowingly makes a false statement to the Department in order to obtain restricted information or who knowingly violates any other provision of this chapter

shall be

is

guilty of a class A misdemeanor.

The Superior Court has jurisdiction over a violation of this chapter.

(o)

Civil actions. —

(1)

Cause of action. —

A person who knowingly obtains, discloses or uses personal information from a motor vehicle record for a purpose not permitted under this chapter shall be liable to the individual to whom the information pertains.

(2)

Remedies. —

The court may

award:

award any of the following:

a. Actual damages, but not less than liquidated damages in the amount of

$2,500;

$2,500.

b. Punitive damages upon proof of wilful or reckless disregard of the

law;

law.

c. Reasonable attorney’s fees and other litigation costs reasonably

incurred; and

incurred.

d.

Such other preliminary

Preliminary

and equitable relief as the court determines to be appropriate.

(p)

Definitions. —

In this chapter:

(1) “Motor vehicle record” means any record that pertains to a motor vehicle operator’s or driver’s permit or license,

driving privilege card,

motor vehicle title, motor vehicle

registration

registration,

or identification document issued by a Division of Motor Vehicles or other state or local agency authorized to issue any such forms or

credentials;

credentials.

(2) “Person” means an individual,

organization

organization,

or entity, but does not include a state or agency

thereof; and

thereof.

(3) “Personal information” means information that identifies an individual, including an individual’s photograph, Social Security number, driver identification number, name, address, telephone number and medical or disability information, but does not include information on vehicular accidents, driving or equipment-related violations and driver’s license or registration status.

Section 2. Amend § 2711, Title 21 of the Delaware Code by making deletions as shown by strike through and insertions as shown by underline as follows:

§ 2711. Application for license.

(d) Any applicant who is able to provide satisfactory documentary evidence of all information described in subsection (c) of this section except for legal presence in the United States, may be eligible for a class D license or a class D temporary instruction permit valid for driving privileges only, hereinafter referred to as a driving privilege card or permit. Federal law prohibits any person from being eligible for a commercial driver license without providing satisfactory documentary evidence of legal presence in the United States.

(1) A driving privilege card or permit applicant must also provide the Division with satisfactory documentary evidence that the applicant, for each of the preceding 2 years, has:

a. Filed a Delaware income tax return; or

b. Resided in Delaware and been claimed as a dependent by an individual who has filed a Delaware income tax return.

(2) A driving privilege card or permit applicant must have completed the procedures required under § 8595 of Title 11.

(3) A driving privilege card or permit shall not be considered a valid form of identification for any purpose.

(4) Every applicant for or holder of a driving privilege card or permit under this section shall be subject to all of the provisions of this and any other title that apply to applicants and holders of class D driver licenses, class D temporary instruction permits, and level 1 learner permits.

(5) Notwithstanding any provision to the contrary, to ensure the public trust of the Delaware undocumented population that will utilize the driving privilege card for its intended purposes, all personal identifiable information collected during the application process shall be kept confidential, except in connection with purposes or procedures that would equally apply to applicants under subsection (c) of this

section.

section, and where the release of personal identifiable information does not differentiate or indicate whether an individual applied for or received a driving privilege card or permit or a driver license or permit.

(6) The Department may not share any personal identifiable information relating to issuance of a driving privilege card to any federal agency or federal law enforcement without specific approval of the Delaware Attorney General or a valid court order.

SYNOPSIS

This Act limits circumstances in which personal identifiable information about applicants or holders of driving privilege cards may be released to those instances where the Delaware Attorney General gives specific approval or where the request for information is in a valid court order. It also amends existing provisions relating to disclosure of driver and motor vehicle information to limit the disclosure or re-disclosure of citizenship or immigration status information and related sensitive personal information. Such information may be released pursuant to a court order, with the approval of the Delaware Attorney General, for voter registration purposes, and where otherwise explicitly authorized by statute.