CHAPTER 511

FORMERLY

HOUSE BILL NO. 642

AS AMENDED BY HOUSE AMENDMENT NOS. 1 AND 2

AN ACT TO AMEND TITLE 21. SECTION 305 OF THE DELAWARE CODE RELATING TO REGISTRATION. LICENSE AND DRIVER'S PERFORMANCE RECORDS.

BE IT ENACTED BY THE GENERAL ASSEMBLY OF THE STATE OF DELAWARE (Two-thirds of all members elected to each House thereof concurring therein):

Section 1. Amend Title 21, Section 305 of the Delaware Code by deleting the existing section in its entirety and substituting in lieu thereof:

"Privacy Act Governing the Release of Motor Vehicle Driving History and License Records".

(A) In General -- Except as provided in subsection (13), (D). (E), and (1) the Division of Motor Vehicles, and any officer, employee, or contractor, thereof, any other person shall 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. Only driver license and driver performance records which are three years old or 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 may also have access to those records and to vehicle title and registration information which are over three years old and are being retained by the Division. Division motor vehicle records can be transmitted to other motor vehicle jurisdictions electronically over authorized networks.

(B) Permissible Uses -- Personal information referred to in subsection (A) shall 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 or advisories: performance monitoring of motor vehicles, motor vehicle parts, and motor vehicle dealers by motor vehicle manufacturers: and removal of non-owner records front the original owner records of motor vehicle manufacturers to carry out the purposes of the Automobile Information Disclosure Act, the Motor Vehicle Information and Cost Saving Act, the National Traffic and Motor Vehicle Safety Act of 1966. the Anti-Car Theft of 1992, and the Clean Air Act. Personal information may be disclosed only upon proof of the identity of the person requesting the record(s) and sworn representation by such person that the released personal information will be strictly limited to one or more ()I' the following described uses:

(1) For use by any government agency. including any court 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 then: motor vehicle emissions: motor vehicle product alterations, recalls, or advisories: performance monitoring of motor vehicles, motor vehicle parts and motor vehicle dealers: motor vehicle market research activities, including survey research: and removal ()I' non-owner 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 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, or arbitration proceeding in any Federal. 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, 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 1946 (49 App. 2710 et seq.).

(4) For use in connection with the operation of private toll transportation

(10) 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.

(4) For bulk distribution for surveys. marketing or solicitations unless the person submitted a request to the Division requesting that his or her name and address contained in the motor vehicle records be excluded from any lists compiled and sold electronically transmitted or otherwise supplied by the Division fix direct mail advertising purposes. this exclusion shall be honored by the Division and shall remain in effect until the Division receives notice from the person to cancel the request or until the record is purged from the Division's tiles. Personal information obtained under this section shall not be re-disclosed for marketing purposes if the person has requested, in a timely fashion their motor vehicle records be excluded on lists used for marketing purposes.

(11) 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 he supplied by the Division requesting that his or her address, phone number. and social security number contained in the driver or vehicle records of the Division be kept confidential except from those named in subsection (B)(1),(2),(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, or their property. A properly submitted notarized affidavit satisfying these conditions shall be honored by the Division and shall remain in effect until the record is purged from the Division's files or until the requesting person submits written notice requesting the release of his or her personal 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 fin their customer.

(D) Court Approval for Release of Information -- Persons or agencies other than those named in subsection (B) and (C) of this section shall he prohibited from acquiring any information pertaining to an individual's address, telephone number, vehicle title, vehicle registration, driver license, and driver performance that is in the possession of the Division of Motor Vehicles except in the following case:

Any individual who can show that there is a lawful need for the prohibited information and that the information cannot he 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 his her 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.

In this instance. the Division shall send by U.S. mail notification to any individuals identified in Section (C) 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. Upon denial of the request, the individual may file a de novo appeal to the Justice of the Peace Courts. Upon receipt of the application fee of $10.00 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 Division shall notify the individuals by U.S Mail if the Justice of the Peace Court orders release of part or all of the requested information.

(E) Disclosure with Consent -- Personal information may he disclosed to any person requesting such information, if such person demonstrates, in such form and manner as the department prescribes, that he has obtained is notarized, written consent from the person whole information is protected. Such consent must he provided each time personal information released. Each written consent limn shall he retained by the Division in electronically digitized microfilm or paper format for n minimum period of five years.

(F) Fees for copies and information. The Secretary shall charge a fee of $4 tier each copy of each State and/or National Driving Record supplied to persons other than those governmental agencies designated in subsection 031(1) of this section. If special handling is needed to certify a record or notarize an affidavit, the fee for such handling shall be $8 to include the requested record. Partial header records sold for direct mail advertising purposes will he charged $375 for set up and $11.75 per 1000 records or portion thereof.

(G) Signature on all records released -- Any record or certified record supplied by the Department pursuant to this title shall contain the signature or facsimile signature of the Director of the Division of Motor Vehicles or of another official of the Division who is a custodian such records and is designated by the Director to sign or to have a facsimile signature infixed For purposes of this subsection a facsimile signature' can he a preprinted signature. a rubber-stamped signature or any other recognized facsimile.

(H) Contract to protect confidentiality -- Governmental agencies. Businesses and individuals designated by subsection rill of this section to obtain vehicle registration, title, driver license, or driver performance records and obtain such personal information by electronic means will 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 of re-disclosed in part or whole except for those authorized purposes covered in subsection (B).

(2) Governmental agencies and businesses are prohibited from releasing personal information used, rented or sold solely for hulk distribution for surveys. marketing. or solicitations on those individuals who prohibited the release of their personal information according to subsection (E).

(1) Additional Conditions -- In addition to provision for payment of applicable fees, the department may, prior to the disclosure of personal information as permitted above, require the meeting of certain conditions by the requesting person for the purpose of obtaining reasonable assurance concerning the identity or 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.

Governmental agencies, 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 subsection B to E, inclusively, shall sign contracts acknowledging their responsibility to protect personal information under this subsection. The contract still contain this section of Title 21 and the requester still specify, as a minimum: (1) the legal basis authorizing access to personal data contained in the Division’s records (2) purposes and Intended use for this data; (3) designation of data elements needed to satisfy their purposes. (4) agreement not to disclose the information obtained unless permitted his this subsection; (5) other requirements as deemed necessary by the Division. Law Enforcement, the courts, other motor vehicle jurisdictions and those governmental agencies and businesses designated by the Secretary of Public Safety are exempt from this subsection.

(I) Additional Conditions -- In addition to provision for payment of applicable fees, the department may, prior to the disclosure of personal information as permitted above, 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.

Governmental agencies, 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 subsection B to E, inclusively, shall sign contracts acknowledging their responsibility to protect personal information under this subsection. The contract will contain this section of Title 21 and the requester will specify, as a minimum: (1) the legal basis authorizing access to personal data contained in the Division's records; (2) purposes and intended uses for this data; (3) designation of data elements needed to satisfy their purposes; (4) agreement not to disclose the information obtained unless permitted by this subsection; (5) other requirements as deemed necessary by the Division. Law enforcement, the courts, other motor vehicle jurisdictions and those governmental agencies and businesses designated by the Secretary of Public Safety are exempt from this subsection.

Medical information, electronically digitized photographs and signatures are not releasable unless approved by the person to whom the information pertains, used to administer the motor vehicle program, used by the courts or law enforcement agencies, or authorized by the Secretary of Public Safety. A signed release from the licensee whose medical information is sought shall constitute a permitted use if notarized.

Personal information shall not be available by telephone or other methods of request other than by personal appearance and in writing unless approved by the Director of Motor Vehicles or his/her designee.

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.

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

The Director may destroy any records of the Division which have been maintained on file for three years, unless otherwise required by this title, which he/she 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.

Any record or certified record supplied by the Department 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/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 Section (C) has been wrongfully disclosed, it shall notify the holder of that information that the information was wrongfully disclosed and may not be used, resold or redisclosed in any way. The Division shall also inform the person who the information pertains to that his or her personal information was disclosed.

(K) Resale or Redisclosure

(1)An authorized recipient of personal information, except a recipient under subsection (12) of paragraph (B), may resell or redisclose the information for any use permitted under paragraph B (but not including the use for bulk distribution for surveys, marketing or solicitations as set forth in subsection (12) of paragraph B).

(3)An authorized recipient of personal information for bulk distribution fox surveys, marketing or solicitations, under subsection (12) of paragraph B, may resell ox redisclose personal information only in accordance with the terms of said subsection concerning the right of individuals, who have so requested in a timely manner, not to have such surveys, marketing or solicitations directed at them.

(5) Any authorized recipient who resells or rediscloses personal information shall be required by the Department to maintain for a period of not less than five 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 Act. 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 Act.

(M) Unlawful Acts --

(1) Procurement for Unlawful Purposes -- It shall be unlawful for any person knowingly to obtain or disclose personal information from a motor vehicle record for any use not permitted under this title.

(3)False Representation -- It shall be 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 his 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 guilty of a Class A misdemeanor.

(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.

(3)Remedies -- The court may award:

(a) actual damages, but not less than liquidated damages in the amount of $2,500;

(b) punitive damages upon proof of willful or reckless disregard law;

(c) reasonable attorney's fees and other litigation costs reasonably incurred; and

(d) such other preliminary and equitable relief as the court determines to be appropriate.

(P) Definitions --

(1) 'Motor Vehicle Record' means any record that pertains to a motor vehicle operator's or driver's permit or license, motor vehicle title, motor vehicle registration, or

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

(2) 'Person' means an individual, organization or entity, but does not include a State or agency thereof; and

(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.

(Q) Severability: If a court of competent jurisdiction determines that any provision of

(R) Effective Date: In accordance with the Driver's Privacy Protection Act this law shall be effective no later than August 24, 1997.

Approved July 17, 1996