Could South Carolina DMV share license photos with other state DMVs under South Carolina FOIA?

Plain-English summary

In 2021, the South Carolina Attorney General concluded that two provisions of the state's Freedom of Information Act did not prevent SCDMV from participating in a digital-image-sharing program with other state motor vehicle departments. Those provisions restricted disclosure of license and identification-card information to private parties. Other state DMVs were government agencies, so the opinion said the stated program did not violate those state provisions.

The office also said the state FOIA provisions did not address a lawful recipient's later use of the information, including redisclosure for a legitimate government function or a criminal court proceeding. It expressly declined to interpret federal driver-privacy law, so its answer was limited to South Carolina law.

Currency note

This opinion was issued in 2021. Subsequent statutory amendments, court decisions, or later AG opinions may have changed the analysis. Treat this page as historical context, not current legal advice. Verify current law before relying on any specific rule, deadline, or remedy mentioned here.

Common questions

Q: Did South Carolina FOIA bar SCDMV from sharing license images with other states' DMVs?
A: The Attorney General said no. The cited state restrictions concerned disclosure to private parties, not another government DMV.

Q: Did the opinion settle federal driver-privacy compliance?
A: No. The office said interpreting federal law was outside the scope of its opinions and confined its conclusion to South Carolina law.

Q: What did the opinion say about later use by a lawful recipient?
A: It said the cited state FOIA provisions did not address that later use or prohibit redisclosure for a legitimate government function or criminal court proceeding.

Background and statutory framework

The opinion analyzed S.C. Code Ann. § 30-4-160 and S.C. Code Ann. § 30-4-165, which concerned DMV records and disclosure to private parties. It mentioned the federal Driver Privacy Protection Act as context but expressly declined to construe federal law. Its South Carolina answer turned on the government status of the recipient DMVs.

Citations and references

The cited legal authorities and the office's conclusions appear in the linked official opinion. Its analysis addressed the question presented in 2021.

Source

• Landing page: https://www.scag.gov/opinions/opinions-archive/opinion-on-the-legality-of-the-south-carolina-department-of-motor-vehicles-participating-in-a-digital-image-sharing-program-with-other-state-departments-of-motor-vehicles/
• Original PDF: https://www.scag.gov/media/s3sbrlaw/shwedok-os-10689-final-opinion-8-2-2021-02661175xd2c78.pdf

Original opinion text

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Alan Wilson
Attorney General

August 2, 2021

Kevin A. Shwedo
Executive Director
South Carolina Department of Motor Vehicles
PO Box 1498

Blythewood, SC 29016
Dear Mr. Shwedo:

You have requested an opinion of this Office regarding the legality of the South Carolina Department of Motor Vehicles ("SCDMV") participating in a digital image sharing program with other state departments of motor vehicles ("DMVs"). You inform us that participants in the

program electronically share digital images of drivers' licenses, beginners' permits, and personal identification cards with each other. The program does not involve a national data base and does not require payment.

According to your letter, the participating DMVs agree by contract that they will only use the digital images for visual identification of a license applicant, which includes the use of facial recognition technology.

An exception is that the images can be used for detecting and

prosecuting license fraud and related violations.

The participants also agree by contract to be bound by the federal Driver Privacy Protection Act ("DPPA"), 18 USC §2721, especially the sections dealing with "personal" and "highly restricted

personal information," as defined by the Act. You state that the sharing of digital images is authorized by DPPA when the information is used to assist a state DMV in carrying out its governmental functions.

You are requesting an opinion on whether participation in the digital image sharing program violates S.C. Code §§ 30-4-160 and 30-4-165. According to your letter, "SCDMV believes that such participation does not violate South Carolina law specifically because the images would not be sold to other State DMVs participating in this image sharing program and would not be provided to any private party."

Rembert C. Dennis Building

-

Post Office 3ox 11549

. Columbia, SC 2921 1-1549

« Telephone 803-734-3970

• Facsimile 803-253-6283

Kevin A. Shwedo
Page 2
August 2, 2021

LAW/ANALYSIS
Because it was included in your letter, we will begin with a brief discussion of DPPA. Pursuant to DPPA, a state department of motor vehicles ("DMV") is prohibited from disclosing a driver's personal information or highly restricted personal information (collectively "personal

information").1 See 18 U.S.C.A. §2721. However, there are exceptions. For example, a DMV is permitted to disclose a driver's personal information "for use by any government agency . . . . in carrying out its functions ..." Id. DPPA does not define the "functions" that are carried out by a government agency.

DPPA also addresses the subsequent use of personal information by a recipient. It provides that a recipient can only resell or redisclose the information for a purpose permitted by the statute. See Id. A recipient is required to keep records for five years "identifying each person or entity that receives information and the permitted purpose for which the information will be used . . ." Id. These records must be available for inspection by the DMV who provided the information. Your question involves sections 30-4-160 and 30-4-165, which are included in South Carolina's Freedom of Information Act ("FOIA"), S.C. Code Ann. § 30-4-10 et seq. (1976 Code, as

amended). Pursuant to section 30-4-160, SCDMV is prohibited from selling or disclosing certain information in a driver's license or personal identification card to a private party: (A) This chapter does not allow the Department of Motor Vehicles to sell, provide, or otherwise furnish to a private party Social

Security numbers in its records, copies of photographs, or
signatures, whether digitized or not, taken for the purpose of a driver's license or personal identification card. (B) Photographs, signatures, and digitized images from a driver's license or personal identification card are not public records.

S.C. Code Ann. § 30-4-160 (1976 Code, as amended) (emphasis added). Section 30-4-165 addresses the "privacy of driver's license information," providing: (A) The Department of Motor Vehicles may not sell, provide, or furnish to a private party a person's height, weight, race, social security number, photograph, or signature in any form that has been compiled for the purpose of issuing the person a driver's 1 "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.A. § 2725. '"Highly restricted personal information' means an

individual's photograph or image, social security number, medical or disability information." Id.

Kevin A. Shwedo

Page 3
August 2, 2021

license or special identification card. The department shall not release to a private party any part of the record of a person under fifteen years of age who has applied for or has been issued a

special identification card.
(B) A person's height, weight, race, photograph, signature, and

or

digitized image contained in his driver's license
identification card record are not public records.

special

(C) Notwithstanding another provision of law, a private person or private entity shall not use an electronically-stored version of a person's photograph, social security number, height, weight, race, or signature for any purpose, when the electronically-stored information was obtained from a driver's license record.

S.C. Code Ann. § 30-4-165 (1976 Code, as amended) (emphasis added).2 A 2011 opinion of this Office involved a request from South Carolina Court Administration ("Court Administration") for electronic images of driver's license photographs to use on warrants. See Op. S.C. Attv. Gen., 2011 WL 1740736 (April 6, 2011). The issue was whether the use of the photographs on warrants, which were publically available documents, would comply with DPPA.

We opined that a court would likely find that Court Administration was a permissible recipient

of the photographic images pursuant to the exceptions in DPPA.3 After considering the use of the images in warrants, it was our opinion that "there is no prohibition on redisclosure of such information by the Courts [Court Administration], so long as the Courts are redisclosing information for permissible purposes, such as making court documents public record in their ordinary course, under 18 USC 2721(C)." Id. We also determined that it would not be a violation of sections 30-4-160 and 30-4-165 of FOIA for SCDMV to share the photographic images with Court Administration because Court Administration was not a private party. CONCLUSION

Interpreting federal law is beyond the scope of our opinions. See Op. S.C. Attv. Gen.. 201 1 WL 1740736 (April 6, 2011) ("This Office has repeatedly indicated that we do not in an opinion construe federal law.") Accordingly, we will focus on your question regarding South Carolina

2 Although it is not part of FOIA, section 56-3-545 also prohibits the SCDMV from selling or disclosing certain information in a driver's license or special identification card to a private party. (1976 Code, as amended).

See S.C. Code Ann. § 56-3-545

3 The exceptions permitted a DMV to disclose a driver's personal information to a court carrying out its functions and in connection with a court proceeding, which included service of process. See 18 U.S.C.A. §2721 (b)(1), (4).

Kevin A. Shwedo
Page 4
August 2, 2021

law.

We agree with SCDMV's conclusion that participation in the digital image sharing

program would not violate sections 30-4-160 and 30-4-165 of South Carolina's Freedom of

Information Act ("FOIA"), S.C. Code Ann. § 30-4-10 et seep The plain language of the statutes prohibits SCDMV from selling or disclosing information from a driver's license or a personal identification card to a private party. SCDMV is not prohibited from providing such information to a government agency, such as a state department of motor vehicles.

The statutes do not address a subsequent use of personal information by a lawful recipient.

A

lawful recipient is therefore not prohibited by FOIA from redisclosing information from a driver's license or a personal identification card for such purposes as a legitimate government function or in connection with a criminal court proceeding. Sincerely,
-7
Elinor V. Lister

Assistant Attorney General

REVIEWED AND APPROVED BY:

Robert D. Cook
Solicitor General