Legal Memorandum: Purpose of Privacy Statutes in VI

Issue: Is it lawful for police to contact a defendant’s former high school and, without warrant or subpoena, demand the school provide the police with defendant’s photograph?

Area of Law: Uncategorized
Keywords: Personally identifiable information; Directory information; Due process and equal protection rights
Jurisdiction: Federal, Virgin Islands
Cited Cases: None
Cited Statutes: 17 V.I.C. § 98(e), 98(d); 20 U.S.C. § 1221 et seq.
Date: 10/01/2008

It is clear that a police demand for a defendant’s photo and the school’s acquiescence is a violation of 17 V.I.C. § 98(e).  This provision, as well as a similar provision in the Family Educational Rights and Privacy Act, 20 U.S.C. § 1221 et seq., provides that no “personally identifiable information” in school records (subject to exceptions not applicable here) may be made available to anyone except the student or his parents without a warrant or subpoena.  Id. 

It may be argued that student identification photos should be considered “directory information,” a category of document excluded from protection.  In fact, however, as used in the statutes, “directory information” is not defined to include individual photographs of students.  Indeed, no mention of any type of pictures or photographs appears in the statute even though many other types of information are specified as coming within the “directory information” exception.  17 V.I.C. § 98(d).

Failure to follow the privacy statutes in obtaining a defendant’s picture violated his due process and equal protection rights.  In addition, a defendant may assert that his equal protection was violated if a police officer who seized his ID testified that “sometimes” the police follow the required statutory procedures and “sometimes” they do not.  This arbitrary and capricious view to following applicable statutes violates both of these constitutional protections.  Suppression may be an appropriate remedy for such discriminatory treatment.  See United States v. Pollard, 209 F. Supp. 2d 525 (D.V.I. 2002), rev’d on other grounds, 326 F.3d […]

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