THE STATE EX REL. MOTOR CARRIER SERVICE, INC., APPELLANT, v. RANKIN, REGISTRAR, ET AL., APPELLEES. THE STATE EX REL. MOTOR CARRIER SERVICE, INC. v. RANKIN, REGISTRAR, ET AL.
Nos. 2012-1264 and 2012-1394
Supreme Court of Ohio
April 18, 2013
135 Ohio St.3d 395, 2013-Ohio-1505
(Nos. 2012-1264 and 2012-1394—Submitted April 10, 2013—Decided April 18, 2013.)
Per Curiam.
{¶ 1} This consolidated case is a public-records matter dealing with the interplay of (1) Ohio‘s Public Records Act,
{¶ 2} Case No. 2012-1394 is an original action in which relator, Motor Carrier Service, Inc. (“MCS“), an Ohio trucking company, seeks a writ of mandamus to compel respondents, BMV Registrar Mike Rankin and Ohio Department of Public Safety Director Thomas P. Charles, to provide an unredacted, noncertified copy of the driving records of an MCS employee at cost. The case is consolidated with case No. 2012-1264, a direct appeal from the Tenth District Court of Appeals, involving the same parties and the same issues, but a different driving record.
{¶ 3} In both cases, MCS requested unredacted copies of the driving records of its employees from the BMV at cost. The BMV refused to provide unredacted copies at cost—five cents per page—but instead, following the BMV rule, required MCS to specify the basis for its entitlement to an unredacted copy on form BMV1173 and to pay a $5 fee for a certified copy. MCS claims that it does
{¶ 4} MCS is not entitled to a writ of mandamus, because disclosure of the records is prohibited by the DPPA unless a requester can demonstrate a permissible use, which it must do by complying with the procedure outlined in the rule,
{¶ 5} For the following reasons, we affirm the Tenth District in case No. 2012-1264 and deny the writ in case No. 2012-1394.
Facts
{¶ 6} The BMV is a division of the Ohio Department of Public Safety (“DPS“) and is a public office within the meaning of the Public Records Act. State ex rel. Mancini v. Ohio Bur. of Motor Vehicles, 69 Ohio St.3d 486, 633 N.E.2d 1126 (1994).
{¶ 7} The DPPA prohibits the disclosure of personal information that the BMV has in connection with a driving record.
Case No. 2012-1264
{¶ 8} On August 31, 2010, MCS submitted a public-records request to the BMV seeking an unredacted copy of the driving record of one of its employees. In its request, MCS stated that the record was necessary to verify information about the employee‘s commercial driver‘s license as required by the Commercial Motor Vehicle Safety Act of 1986,
{¶ 9} The BMV provided MCS with a copy of the driving record, but with the employee‘s personal information redacted. In a subsequent letter, an attorney for DPS explained that the redaction is required by
{¶ 10} MCS filed a mandamus action in the Tenth District Court of Appeals, claiming that it was entitled to an unredacted copy of the driver‘s record at cost. The respondents countered that disclosure was prohibited by the DPPA and that MCS had failed to demonstrate that any exception applied, because it filed a request under the general public-records provision,
{¶ 11} The Tenth District magistrate recommended denial of the writ, finding that because MCS had applied under
Case No. 2012-1394
{¶ 12} On July 3, 2012, MCS submitted a request, including a completed BMV form, but again lacking the $5 fee, to BMV Registrar Rankin for a copy of the unredacted, noncertified driving record of an employee. MCS again specified that its request was to verify information relating to its employee‘s commercial driver‘s license that is required under the Commercial Motor Vehicle Safety Act of 1986. The DPS again provided only a redacted version of the requested driving record, citing the DPPA and
{¶ 13} On August 14, MCS filed case No. 2012-1394 as an original action in this court for a writ of mandamus to compel respondents, BMV Registrar Mike Rankin and DPS Director Thomas P. Charles, to provide access at cost to an unredacted, noncertified copy of the employee driving record MCS requested in its July 3, 2012 request. On October 1, 2012, an alternative writ was granted. 133 Ohio St.3d 1403, 2012-Ohio-4477, 975 N.E.2d 1022. At the same time, case
{¶ 14} This cause is now before the court for our consideration of the merits.
Analysis
Request for oral argument
{¶ 15} The phrase “Request for Oral Argument” appears on the front page of MCS‘s Memorandum in Support of Writ in case No. 2012-1394, without explanation in the memorandum or in any pleading. As part of their response to the motion to consolidate, the BMV and DPS concur in that request, although again with no explanation as to why oral argument is needed here.
{¶ 16} In cases in which oral argument is not mandatory—such as original actions and direct appeals from cases originating in a court of appeals, see
{¶ 17} No conflict in the lower courts has been identified, and the case involves an important, but narrow, issue of public-records law. The briefs are sufficient for us to resolve the appeal here. Jean-Baptiste at ¶ 13, citing State ex rel. Otten v. Henderson, 129 Ohio St.3d 453, 2011-Ohio-4082, 953 N.E.2d 809, ¶ 19. We therefore proceed to decide the merits of the case without oral argument.
Public Records Act analysis
{¶ 18} “Mandamus is the appropriate remedy to compel compliance with
{¶ 19}
{¶ 20} In 1994, the federal government enacted the DPPA to regulate the disclosure and resale of personal information in the records of state motor-vehicle departments.
{¶ 21} DPPA‘s ban on disclosure has exceptions, some requiring disclosure (not pertinent here) and some permitting disclosure. One exception allows the BMV to disclose personal information “[f]or use by an employer or by the agent or insurer of an employer to obtain or verify information relating to the holder of a commercial driver‘s license or permit that is required under the ‘Commercial Motor Vehicle Safety Act of 1986,’ 100 Stat. 3207-170,
{¶ 22} Ohio‘s DPPA establishes a procedure for requesting DPPA-protected material from the BMV, by granting the BMV rule-making authority. Specifically,
{¶ 23} Under that authority, the BMV promulgated
{¶ 24} First, the requester may make a public-records request under
{¶ 25} A requester seeking an unredacted record containing personal information may make a request under
Ohio Adm.Code 4501:1-12-02 does not conflict with the Public Records Act
{¶ 26} A well-settled principle of Ohio law is that when two statutes, one general and one specific, cover the same subject matter, the specific provision is to be construed as an exception to the general statute that might otherwise apply. See State ex rel. Slagle v. Rogers, 103 Ohio St.3d 89, 2004-Ohio-4354, 814 N.E.2d 55, ¶ 14, citing State ex rel. Dublin Securities, Inc. v. Ohio Div. of Securities, 68 Ohio St.3d 426, 429, 627 N.E.2d 993 (1994). This rule has also been codified at
If a general provision conflicts with a special or local provision, they shall be construed, if possible, so that effect is given to both. If the conflict between the provisions is irreconcilable, the special or local provision prevails as an exception to the general provision, unless the general provision is the later adoption and the manifest intent is that the general provision prevail.
{¶ 27} MCS‘s argument here appears to be that the provisions of Ohio‘s Public Records Act,
{¶ 28} More specifically, MCS complains that the rule “effectively prohibits a DPPA-authorized requester from ever obtaining an unredacted, uncertified copy of the record pursuant to Ohio‘s public records laws.” The rule also “forces the DPPA-authorized requester to pay a $5.00 fee for a certified copy—a product which is not being requested, nor wanted.” MCS also complains that
{¶ 29} Contrary to MCS‘s position, the Public Records Act is not immune from
{¶ 30} MCS appears to agree with the first two requirements of
{¶ 31} Thus, under Slagle and the precedent cited there, a specific statute establishing a fee or a method for determining a fee for a requested public record acts as an exception to the general “at cost” language in
{¶ 32} Therefore, MCS cannot get an unredacted copy of the driver‘s record without applying for it under
The BMV is not estopped from arguing that Ohio Adm.Code 4501:1-12-02 is valid
{¶ 33} The doctrine of judicial estoppel prohibits a party from taking a position inconsistent with one successfully and unequivocally asserted by the same party in a prior proceeding. Greer-Burger v. Temesi, 116 Ohio St.3d 324, 2007-Ohio-6442, 879 N.E.2d 174, ¶ 25. MCS contends that the arguments made by the DPS and the BMV in another case—Roth v. Guzman, 650 F.3d 603 (6th Cir.2011)—estop them from making the arguments they make here. We disagree. Roth is factually distinguishable and was decided based on federal law alone. Moreover, at the time relevant to the facts in Roth,
{¶ 34} The issue in Roth was whether the DPS director and the BMV registrar had qualified immunity under the federal DPPA for their disclosure of personal information in bulk to a company, Shadowsoft, Inc. Shadowsoft had applied for personal information of Ohio drivers in bulk, asserting that it had a legitimate reason for the information, and signed an agreement that it would use the information in conformity with all applicable laws governing personal information. According to the plaintiffs in Roth, Shadowsoft later sold the entire database to an entity that placed it on a public website, in contravention of the DPPA. The plaintiffs—Ohio drivers whose personal information, as defined by the federal DPPA, was posted on the website—sued the BMV and the DPS, attempting to hold them liable for Shadowsoft‘s improper use. Roth at 607-609. Shadowsoft had apparently submitted form BMV1173 and apparently paid the fee required at the time. Id. at 608.
{¶ 35} MCS contends that the DPS and the BMV in Roth argued that when a requester fills out the proper forms, asserts that the disclosure is for a proper purpose, and pays the proper fee, as Shadowsoft did, the BMV is required to disclose under the Ohio Public Records Act. MCS claims that this argument is
Motor Carrier Service is not entitled to an award of attorney fees
{¶ 36} Because MCS‘s public-records mandamus claim lacks merit, it is not entitled to an award of attorney fees. State ex rel. Dawson v. Bloom-Carroll Local School Dist., 131 Ohio St.3d 10, 2011-Ohio-6009, 959 N.E.2d 524, ¶ 34.
Conclusion
{¶ 37} MCS cannot get an unredacted copy of an employee‘s driving record without applying for it under
Judgment accordingly.
O‘CONNOR, C.J., and PFEIFER, O‘DONNELL, LANZINGER, KENNEDY, and O‘NEILL, JJ., concur.
FRENCH, J., not participating.
Vorys, Sater, Seymour & Pease, L.L.P., Lisa Pierce Reisz, Kenneth J. Rubin, and Thomas E. Szykowny, for relator in case No. 2012-1394 and appellant in case No. 2012-1264.
Michael DeWine, Attorney General, and William J. Cole and Hillary R. Damaser, Assistant Attorneys General, for respondents in case No. 2012-1394 and appellees in case No. 2012-1264.