THE MCCLATCHY COMPANY v. TOWN OF CHAPEL HILL, NORTH CAROLINATHE MCCLATCHY COMPANY v. TOWN OF CHAPEL HILL, NORTH CAROLINA
LORETTA C. BIGGS, District Judge.
Plaintiffs The McClatchy Company d/b/a The News and Observer Publishing Company, Capitol Broadcasting Company, DeMayo Law Offices, LLP, and Marcari, Russotto, Spencer & Balaban, P.C. (“Plaintiffs“) initiated this action for declaratory and injunctive relief against Defendant Town of Chapel Hill. (ECF No. 1 ¶¶ 1-9.) Plaintiffs seek a declaration that the Driver‘s Privacy Protection Act (“DPPA“),
Before the Court are cross-motions for summary judgment, (ECF Nos. 31 & 33), as well as Plaintiffs’ motion for leave to file a surreply in opposition to Defendant‘s motion for summary judgment, (ECF No. 42), and Plaintiffs’ motion for preliminary injunction, (ECF No. 9).
For the reasons stated herein, Plaintiffs’ motion for summary judgment, (ECF No. 31), will be denied; Defendant‘s motion for summary judgment, (ECF No. 33), will be granted; Plaintiffs’ motion for leave to file a surreply, (ECF No. 42), will be denied; and Plaintiffs’ motion for preliminary injunction, (ECF No. 9), will be denied as moot.
I. BACKGROUND
A. DPPA
The Driver‘s Privacy Protection Act holds liable parties “who knowingly obtain[], disclose[] or use[] personal information, from a motor vehicle record, for a purpose not permitted [by the statute].”
Under the DPPA, state departments of motor vehicles (“DMVs“) are generally prohibited from knowingly disclosing “personal information” to any person or entity.
However, there are exceptions under the DPPA where state DMVs may properly disclose personal information. Specifiсally, state DMVs may disclose personal information:
(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 Federal, State, or local agency in carrying out its functions. . . .
(14) 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.
Further, the DPPA prohibits resale or redisclosure of that same personal information unless one of the enumerated exceptions is met: “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 (12)).”
B. Accident Reporting Procedure in North Carolina
When a car accident occurs in North Carolina, law enforcement agencies (“LEAs“) are required to investigate those accidents which are reported to them.
LEAs are permitted to use driver-identifying information (i.e., personal information) provided by the NCDMV to prepare these accident reports. (ECF No. 22-2 ¶ 4.) In practice, the Town of Chapel Hill Police Department (“CHPD“) offiсers complete accident reports from the Mobile Computer Terminal (“MCT“) in their patrol vehicles. (
The parties agree that this initial disclosure of personal information by the NCDMV (via the NCDMV database) to a LEA preparing an accident report is permissible under the DPPA exception “[f]or use by any government agency, including any ... law enforcement agency, in carrying out its functions.” (ECF Nos. 39 at 10; 32 at 9-10);
C. NCPRA
Under the North Carolina Public Records Act (“NCPRA“),
[t]he public records and public information compiled by the agencies of North Carolina government, or its subdivisions are the property of the people. Therefore, it is the policy of this State that the people may obtain copies of their public records and public information free or at minimal cost unless otherwise spеcifically provided by law.
North Carolina law further specifies that “reports made by law enforcement officers and medical examiners are public records and are open to inspection by the general public at all reasonable times.”
D. Requests for Accident Reports from CHPD
Plaintiffs are various law firms and news and media organizations. The Law Firm Plaintiffs use accident reports to advertise and “introduce their services to drivers who may need the assistance of counsel to oppose aggressive claims representatives from insurance companies, understand their rights, or pursue injury compensation in the courts,” (ECF No. 1 ¶ 5), and the Media Plaintiffs “routinely use information provided in accident reports to inform reporting that appears in print, broadcast, and digital formats,” (
In March 2021, CHPD stopped providing unredacted accident reports (i.e., those with names and addresses visible) unless the requesting party provided a basis for receiving “DPPA-protected information.” (ECF Nos. 32 at 7; 39 at 5.) The CHPD maintains that its policy requiring the request “provide a basis for receiving DPPA protected information” has been in place since 2012 and that any unredacted reports produced without a permissible reason under the DPPA “would nоt have been in accordance with CHPD‘s policies.” (ECF No. 22-2 ¶¶ 10, 15, 17.)
II. STANDARD OF REVIEW
Summary judgment is appropriate when “the movant shows that there is no genuine dispute as to any material fact and the movant is entitled to judgment as a matter of law.”
Where the nonmovant will bear the burden of proof at trial, the party seeking summary judgment bears the initial burden of “pointing out to the district court ... that there is an absence of evidence to support the nonmoving party‘s case.” Celotex Corp. v. Catrett, 477 U.S. 317, 325 (1986). If the
Where, as in this case, the Court has before it cross-motions for summary judgment, the Court reviews each motion separately to determine if either party is entitled to judgment as a matter of law. Rossignol v. Voorhaar, 316 F.3d 516, 523 (4th Cir. 2003). The parties have represented that there are no issues of material fact, and this matter thus turns on interpreting the DPPA and NCPRA.
III. DISCUSSION
A. Plaintiffs’ Motion for Summary Judgment
Plaintiffs argue that the DPPA does not bar North Carolina LEAs from releasing to the public accident reports containing the unredacted names and addresses of involvеd drivers. (ECF No. 32 at 3.) Plaintiffs maintain that release of such records is mandatory under the NCPRA and specifically challenge CHPD‘s policy which only permits Plaintiffs to receive a “public copy” of an accident report—that is, an accident report that redacts any “personal information,” as defined in the DPPA. (
Defendant acknowledges that the initial disclosure of “personal information” directly from “motor vehicle records” held by NCDMV in the process of creating accident reports is permissible under the DPPA exception outlined in
Both parties also make arguments undеr the First Amendment. Plaintiffs emphasize how the “First Amendment creates a right to receive information vital to exercising protected speech,” (ECF No. 32 at 24), while Defendant argues that First Amendment allows it to protect the personal information of accident victims from disclosure, (ECF No. 39 at 24). However, the Court need not reach these constitutional arguments to resolve the instant matter.
Given that Plaintiffs heavily cite this Court‘s holding in Garey v. James S. Farrin, P.C., 514 F. Supp. 3d 784 (M.D.N.C. 2021), aff‘d, 35 F.4th 917 (4th Cir. 2022), the Court finds a review of its analysis in Garey to be a helpful starting point.1
In Garey, the defendants, a group of personal injury lawyers, acquired unredacted accident reports from LEAs and data brokеrs, then used that personal information (i.e., driver names and addresses) to mail unsolicited advertising materials to drivers. Garey, 514 F. Supp. 3d at 787. The plaintiff drivers who received those materials asserted that the law firm defendants violated the DPPA by “knowingly obtain[ing] ... personal information, from a motor vehicle record” for an impermissible purpose. Id. at 791; see also
The Court noted the DPPA‘s definition of “motor vehicle record” as a “‘record that pertains to a motor vehicle operator‘s permit, motor vehicle title, motor vehicle registration, or identification card’ issued by a DMV.” Garey, 514 F. Supp. 3d at 791 (quoting
In reaching its holding, this Court first looked to the only two Supreme Court cases concerning the DPPA, Reno v. Condon, 528 U.S. 141 (2000) and Maracich v. Spears, 570 U.S. 48 (2013). While “[n]either ultimate holding, on its own, is particularly relevant to the instant case,” each case provides some helpful context to the DPPA landscape. Garey, 514 F. Supp. 3d at 792-94.
In Reno, the Supreme Court found that the DPPA “regulates the resale and redisclosure of drivers’ personal information by private persons who have obtained that information from a state DMV.” Reno, 528 U.S. at 146 (citing
Then, in Maracich, the Supreme Court considered the legislative history of the DPPA, highlighting Congress’ concern in passing the DPPA as twofold: “first, ‘a growing threat from stalkers and criminals who could acquire personal information from state DMVs’ and, second, uneasiness around ‘the States’ common practice of selling personal information to businesses
This Court also examined various cases where courts have dismissed DPPA claims where no direct interaction with a state DMV was alleged, which proved fatal to such claims. Garey, 514 F. Supp. 3d at 794-95; see also, e.g., Siegler v. Best Buy Co., 519 F. App‘x 604, 605 (11th Cir. 2013) (“A plain reading of the DPPA makes clear that the Act was intended to prohibit only the disclosure or redisclosure of information originating from state department of motоr vehicle (‘DMV‘) records. . . . On its face, the Act is concerned only with information disclosed, in the first instance, by state DMVs.” (footnote omitted)); Fontanez v. Skepple, 563 F. App‘x 847, 849 (2d Cir. 2014) (“Where the personal information at issue is not obtained from a state DMV, no DPPA cause of action can be found.“).
Based on this analysis, this Court in Garey rejected the driver plaintiffs’ “chain of liability” argument that DPPA protections follow information from the time it is entered into a DMV database, through the issuance of a driver‘s license, then to any subsequent obtainment, disclosure, or use of information. 514 F. Supp. 3d at 796. “Such a theory extends the statutory language [of the DPPA] beyond its explicit construction.” Id. Even further, doing so would go “against the weight of the case law and the underlying legislative goals identified by the Court in Maracich.” Id. Thus, this Court determined that the lawyer defendants did not violate the DPPA when they obtained or used the personal information contained within the accident reports maintained by LEAs and that their conduct fell outside the ambit of the DPPA. Id.
The Fourth Circuit ultimately affirmed this Court in Garey—albeit on narrower grounds. Garey v. James S. Farrin, P.C., 35 F.4th 917, 920, 924 (4th Cir. 2022). The Fourth Circuit‘s analysis focused on the fact that plaintiffs never alleged that the law firms ever “obtained any of the [p]laintiffs’ personal information ‘from’ any of the sources that they argue constitute ‘motor vehicle record[s].‘” Id. at 924-25. The court noted that “even assuming for the sake of argument that everything the Plaintiffs consider to be a ‘motor vehicle record’ is, in fact, a ‘motor vehicle record,’ the [p]laintiffs [could not] prevail.” Id. at 925. It held that “the legislative history clarifies the plain text: the DPPA imposes civil liability only on a defendant who obtains personal information from a motor vehicle record, but not on a defendant who merely obtains personal information that can be linked back to (i.e., derived from) such a record.” Id. at 927.
Moreover, it was not necessary for the court to determine whether or not a DMV database is or contains “motor vehicle record[s]” because there was no allegation by the Garey plaintiffs that the law firms themselves had accessed any such database. Id. (“So regardless of whether a given DMV database is or contains ‘motor vehicle record[s],’ the Defendants here did not ‘obtain’ any information ‘from’ such a database.“).
Likewise, the Fourth Circuit did not make any finding as to whether an accident report itself is a “motor vehicle record.” Id. at 927-28. Rather, the court
On the one hand, there is a non-frivolous textual argument that an accident report is a “record that pertains to a motor vehicle operator‘s permit,” because the report indicates whether a driver‘s address is the same as that shown on their license.
§ 2725(1) . Indeed, a district court in our circuit recently held that the exact same kind of accident report аt issue here is a “motor vehicle record” within the meaning of the DPPA. See Gaston v. LexisNexis Risk Sols., Inc., 483 F. Supp. 3d 318, 336-37 (W.D.N.C. 2020). On the other hand, several courts have limited a DPPA “motor vehicle record” to those documents held by a state DMV, which would exclude the accident reports in question. See, e.g., Andrews, 932 F.3d at 1259-60; Fontanez v. Skepple, 563 F. App‘x 847, 849 (2d Cir. 2014) (unpublished) (summary order); Siegler v. Best Buy Co. of Minn., Inc., 519 F. App‘x 604, 605 (11th Cir. 2013) (unpublished) (per curiam). We need not and do not reach this question, because the Plaintiffs have failed to preserve this argument.
Notably, here, both parties agree that the personal information (namely, driver names and addresses) contained in eаch accident report compiled by the CHPD does in fact come from a NCDMV database. (ECF Nos. 32 at 9-10; 34 at 9.) Accepting this fact, it seems only natural for the Court to conclude that the information or records contained within that NCDMV database—which are ultimately accessed by CHPD—constitute “motor vehicle record[s]” as defined by the DPPA. See
Under
The Court agrees with Defendant that it would be “nonsensical” to characterize responding to public records requests as a “government function” under
Indeed, the fundamental purpose of the DPPA is to limit the public disclosure of personal information contained in motor vehicle records. Therefore, while an accident report may be a public record subject to unlimited disclosure with respect to information in the report that is not personal information protected under the DPPA, it would completely undermine the purpose of the DPPA if a state could simply designate a document containing personal information subject to DPPA protection as a “public record” and thereby avoid complying with its restrictions. Simply put, the very essence of the DPPA is to limit the disclosure
of information that had previously been made widely available as a public record; so, with due respect to [the data mining company defendants‘] argument, it would be nonsensical to hold that a permissible governmental “function” under the DPPA is to publicly disclose personal information in a “public record.”
This conclusion applies to the Crash Reports whether they are obtained from CMPD or another local law enforcement agency or the state DMV. Defendants argue that because CMPD makes Crash Reports available as “public records” without any restrictions if the reports are obtained in person, then they can make the same reports available online without complying with the DPPA. However, as discussed above, whether or not they are “public records,” Crash Reports which qualify as “motor vehicle records” or which contain personal information obtained from “motor vehicle records” such as DMV records or driver‘s licenses are subject to the DPPA. So, to the extent that CMPD provides such records to the public without redacting that personal information or limiting disclosure only for those uses permitted by the DPPA then it is in violation of the statute.
Gaston v. LexisNexis Risk Sols., Inc., 483 F. Supp. 3d 318, 346-47 (W.D.N.C. 2020) (footnotes omitted).
Accordingly, the Court must and will deny Plaintiff‘s motion for summary judgment. The Court finds that the CHPD‘s policy of releasing accident reports with personal information obtained from the NCDMV in redacted form (unless the requesting party satisfies a DPPA exception) comports with the plain language of the DPPA.
B. Defendant‘s Motion for Summary Judgment
Moving on to Defendant Town of Chapel Hill‘s cross motion, the core of Defendant‘s аrgument is that the personal information contained in each accident report created by the CHPD is governed by the DPPA and that Plaintiffs are not entitled to disclosure of such information under North Carolina public records law. (ECF No. 34 at 10-14.) Specifically, Defendant argues that accident reports are not public records under both
The Court‘s analysis above addresses Defendant‘s contention that accident reports contain information governed by the DPPA. To reiterate, the Court agrees that the personal information obtained by the CHPD directly from an NCDMV database remains subject to DPPA protection under
The Court finds that it need not reach Defendant‘s remaining argument under North Carolina public records law. Whether or not accident reports are public records under North Carolina law does not disturb this Court‘s ultimate holding: that
The Court therefore grants Defendant Town of Chapel Hill‘s motion for summary judgment for the reasons outlined above; and declines to enjoin Defendant‘s policy of requiring those who request accident reports containing unredacted driver names and addresses obtained directly from the NCDMV database to satisfy a DPPA exception. Such a policy represents compliance with the DPPA and therefore Defendant is entitled to judgment in its favor as a matter of law.
C. Plaintiffs’ Motion for Leave to File a Surreply
“Parties do not have the right to file a surreply.” DiPaulo v. Potter, 733 F. Supp. 2d 666, 670 (M.D.N.C. 2010). “Generally, courts allow a party to file a surreply only when fairness dictates based on new arguments raised in the previous reply.” Id. “Surreplies are generally disfavored.” Olvera-Morales v. Int‘l Labor Mgmt. Corp., 246 F.R.D. 250, 254 (M.D.N.C. 2007). “Absent new arguments, ‘a surreply is unnecessary.‘” Pathfinder Software, LLC v. Core Cashless, LLC, 127 F. Supp. 3d 531, 537 (M.D.N.C. 2015) (quoting Adefila v. Select Specialty Hosp., 28 F. Supp. 3d 517, 522 n.3 (M.D.N.C. 2014)).
Here, the Court does not find that Defendant raised any new arguments in its reply brief to Plaintiffs’ response to Defendant‘s motion for summary judgment. A surreply is thus unnеcessary. The “new arguments” which Plaintiffs allege that Defendant advances in its reply brief are iterations of, or related to, its previously raised arguments. Nor does the Court find that a surreply would aid in its ultimate resolution of the issue at hand. Accordingly, Plaintiffs’ motion, (ECF No. 42), will be denied.
For the reasons stated herein, the Court enters the following:
ORDER
IT IS THEREFORE ORDERED that Plaintiffs’ Motion for Summary Judgment, (ECF No. 31), is DENIED.
IT IS FURTHER ORDERED that Defendant Town of Chapel Hill‘s Motion for Summary Judgment, (ECF No. 33), is GRANTED and a judgment in Defendant‘s favor dismissing this action shall be filed contemporaneously with this Memorandum and Order.
IT IS FURTHER ORDERED that Plaintiffs’ Motion for Leave to File a Surreply in Opposition to Defendant‘s Motion for Summary Judgment, (ECF No. 42), is DENIED.
IT IS FURTHER ORDERED that Plaintiffs’ Motion for Preliminary Injunction, (ECF No. 9), is DENIED AS MOOT.
This, the 23rd day of February 2023.
/s/ Loretta C. Biggs
United States District Judge