Roth v. Guzman

• Citation: 650 F.3d 603
• Decision Date: 13 June 2011
• Docket Number: No. 10–3542.,10–3542.
• Parties: Eric T. ROTH, individually and on behalf of all others similarly situated; Mary Beth Roth, individually and on behalf of all others similarly situated; Erin C. Kenny, individually and on behalf of all others similarly situated, Plaintiffs–Appellees,v.Henry GUZMAN, Director, Ohio Department of Public Safety; Mike Rankin, Registrar, Ohio Bureau of Motor Vehicles, Defendants–Appellants.
• Court: United States Courts of Appeals. United States Court of Appeals (6th Circuit)

650 F.3d 603

Eric T. ROTH, individually and on behalf of all others similarly situated; Mary Beth Roth, individually and on behalf of all others similarly situated; Erin C. Kenny, individually and on behalf of all others similarly situated, Plaintiffs–Appellees,

v.Henry GUZMAN, Director, Ohio Department of Public Safety; Mike Rankin, Registrar, Ohio Bureau of Motor Vehicles, Defendants–Appellants.

No. 10–3542.

United States Court of Appeals, Sixth Circuit.

Argued: April 26, 2011.Decided and Filed: June 13, 2011.

ARGUED: Elisabeth A. Long, Ohio Attorney General's Office, Columbus, Ohio, for Appellants. Charles T. Lester, Jr., Eric C. Deters & Associates, Independence, Kentucky, for Appellees. ON BRIEF: Elisabeth A. Long, Benjamin C. Mizer, Ohio Attorney General's Office, Columbus, Ohio, for Appellants. Charles T. Lester, Jr., Eric C. Deters & Associates, Independence, Kentucky, for Appellees.Before: GUY, CLAY, and McKEAGUE, Circuit Judges.GUY, J., delivered the opinion of the court, in which McKEAGUE, J., joined. CLAY, J. (pp. 617–21), delivered a separate dissenting opinion.

OPINION

RALPH B. GUY, JR., Circuit Judge.

Defendants Henry Guzman, Director of the Ohio Department of Public Safety, and Mike Rankin, Registrar of the Ohio Bureau of Motor Vehicles, appeal from the district court's determination that they were not entitled to qualified immunity from suit in this putative class action alleging violation of the plaintiffs' rights under the federal Driver's Privacy Protection Act (DPPA), 18 U.S.C. §§ 2721–2725, and 42 U.S.C. § 1983. Without challenging other aspects of the decision denying their motion to dismiss, defendants argue that their alleged conduct did not violate the plaintiffs' clearly established federal rights as delineated by the DPPA. We agree, and for the reasons that follow, we reverse.

I.

This court has jurisdiction over the defendants' interlocutory appeal from the denial of qualified immunity, but only to the extent that the appeal turns on issues of law. Mitchell v. Forsyth, 472 U.S. 511, 530, 105 S.Ct. 2806, 86 L.Ed.2d 411 (1985); Estate of Carter v. City of Detroit, 408 F.3d 305, 309–10 (6th Cir.2005). We review the denial of qualified immunity de novo, and the same standard applies to the motion for judgment on the pleadings under Fed.R.Civ.P. 12(c) as to a motion to dismiss under Fed.R.Civ.P. 12(b)(6). Williams v. Mehra, 186 F.3d 685, 689–90 (6th Cir.1999) (en banc); EEOC v. J.H. Routh Packing Co., 246 F.3d 850, 851 (6th Cir.2001). To survive a motion to dismiss, the complaint must “contain sufficient factual matter, accepted as true, to ‘state a claim to relief that is plausible on its face.’ ” Ashcroft v. Iqbal, 556 U.S. 662, 129 S.Ct. 1937, 1949, 173 L.Ed.2d 868 (2009); (quoting Bell Atl. Corp. v. Twombly, 550 U.S. 544, 570, 127 S.Ct. 1955, 167 L.Ed.2d 929 (2007)).¹

A. Driver's Privacy Protection Act of 1994

The federal DPPA was enacted in response to growing concerns over the ease with which stalkers and other criminals could obtain personal information from state departments of motor vehicles.² Reno v. Condon, 528 U.S. 141, 143–44, 120 S.Ct. 666, 145 L.Ed.2d 587 (2000). Congress was also concerned about the practice in many states of selling personal information from motor vehicle records to businesses, marketers, and others for, at times, significant revenue. Id. The DPPA, held to be a proper exercise of the power to regulate interstate commerce, established a regulatory scheme that both mandates and restricts the disclosure of personal information from records maintained by state motor vehicle departments. Id. at 148, 120 S.Ct. 666.

At all times relevant to this case, the DPPA, as amended, imposed the following general prohibitions against the disclosure of personal information obtained from an individual's motor vehicle record:

(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

(2) highly restricted personal information, as defined in 18 U.S.C. § 2725(4), about any individual obtained by the department in connection with a motor vehicle record, without the express consent of the person to whom such information applies, except uses permitted in subsections (b)(1), (b)(4), (b)(6), and (b)(9); Provided, That subsection (a)(2) shall not in any way affect the use of organ donation information on an individual's driver's license or affect the administration of organ donation initiatives in the States.

18 U.S.C. § 2721(a)(1)–(2) (emphasis added). “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.” Id. at § 2725(3). “Highly restricted personal information” is defined as “an individual's photograph or image, social security number, medical or disability information.” Id. at § 2725(4).

Section 2721(b) carves out both mandatory and permissive exceptions to the general prohibitions in subsection (a). Id. at § 2721(b). First, states must disclose personal information for use in carrying out the purposes of several federal statutes not relevant here. Second, states may disclose personal information (subject to § 2721(a)(2)), for any of the permissible uses or purposes listed in § 2721(b)(1)–(14). Eleven of these permissible uses—including for “use in the normal course of business” under § 2721(b)(3)—authorize nonconsensual disclosure of personal information. Id. at § 2721(b)(1)–(10) and (14). The other three permissible uses require the express consent of the persons to whom the information pertains. Id. at § 2721(b)(11)–(13).

The DPPA also regulates the “resale or redisclosure” of personal information in § 2721(c), which provides, in pertinent part, that: “An authorized recipient of personal information (except a recipient under subsection (b)(11) or (12)) may resell or redisclose the information only for a use permitted under subsection (b) (but not for uses under subsection (b)(11) or (b)(12)).” Id. at § 2721(c) (emphasis added). Subsection (c) also imposes a record-keeping obligation on “[a]ny authorized recipient (except a recipient under subsection (b)(11)) that resells or rediscloses personal information covered by this chapter” to keep for five years “records identifying each person or entity that receives information and the permitted purpose for which the information will be used and must make such records available to the motor vehicle department upon request.” Id.³

The DPPA makes it unlawful for “any person knowingly to obtain or disclose personal information, from a motor vehicle record, for any use not permitted under [§ ] 2721(b),” or “to make false representation to obtain any personal information from an individual's motor vehicle record.” 18 U.S.C. § 2722(a)–(b). A person who knowingly violates the DPPA is subject to criminal fine, id. at § 2723(a), and may be held civilly liable for actual damages (but not less than $2,500 in liquidated damages), punitive damages, attorney fees, and appropriate equitable relief, id. at § 2724. A “person” is defined as an individual, organization or entity, “but does not include a State or agency thereof,” id. at § 2725(2). Instead, the Attorney General may impose civil penalties if a state has a policy or practice of “substantial noncompliance” with the DPPA, id. at § 2723(b) (civil penalty of not more than $5,000 per day).

B. Factual Allegations

Plaintiffs Eric Roth, Mary Beth Roth, and Erin Kenny brought this action on behalf of themselves and other similarly situated drivers licensed in Ohio any time after April 8, 2004, whose “personal information” as defined by the DPPA was disclosed, sold, or otherwise disseminated by the individual defendants while acting as agents or employees of the Ohio Department of Public Safety (DPS) and/or the Ohio Bureau of Motor Vehicles (BMV). Specifically, plaintiffs alleged that Shadowsoft, Inc., a Texas corporation specializing in “public records database distribution,” unlawfully acquired a large database from the DPS and/or BMV that contained “personal information” belonging to “hundreds of thousands” of drivers licensed in Ohio. Defendants admitted in their Answer that the BMV disclosed personal information to Shadowsoft in response to its requests for public records for a purportedly permissible purpose under the DPPA—namely, for use in the “normal course of business” under 18 U.S.C. § 2721(b)(3)—and attached documents associated with Shadowsoft's requests to their Answer.⁴

Plaintiffs further alleged, upon information and belief, that Shadowsoft “transferred the database in totum ” to The Source for Public Data, LP, (PublicData), which, in turn, allegedly made the personal information “available for search and sale on its website, www. publicdata. com.” There is no claim that the defendants disclosed information directly to PublicData, only a general allegation that plaintiffs' personal information was disseminated without obtaining their express consent and not for a purpose otherwise permitted by the DPPA. Defendants, for their part, generally denied having unlawfully disclosed, sold, or otherwise disseminated personal information to Shadowsoft, PublicData, or any other entity.

More specifically, the documents attached to defendants' Answer, and therefore properly considered as part of the pleading for all purposes, shed light on the challenged disclosures. See Fed.R.Civ.P. 10(c) (“A copy of a written instrument that is an exhibit to a pleading is a part of the pleading for all purposes.”); Commercial Money Ctr.,...