Lucas v. Moore

UNITED STATES DISTRICT COURT

SOUTHERN DISTRICT OF OHIO

EASTERN DIVISION

Vincent Lucas,

Plaintiff, Case No. 2:18-cv-582

Vv. Judge Michael H. Watson

Tricia Moore, ef ai., Magistrate Judge Chelsey M.

Vascura

Defendants.

OPINION AND ORDER

Vincent Lucas (“Plaintiff”), proceeding without the assistance of counsel,

brings this action under the Driver's Privacy Protection Act (“DPPA’), 18 U.S.C.

§§ 2721 et seq., against Tricia Moore (“Moore”), Marcia J. Phelps (“Phelps”), and

the City of Newark, Ohio (“the City”) (collectively, “Defendants”).' Plaintiff moved

for summary judgment against Phelps, ECF No. 16, and Phelps cross-moved for

summary judgment on Plaintiff's claims against her, ECF No. 22. Moore and the

City also moved for summary judgment, ECF No. 45, and Plaintiff cross-moved

for summary judgment on his claims against both, ECF Nos. 48, 49. For the

following reasons, the Court DENIES Plaintiffs motions for summary judgment

and GRANTS Defendants’ motions for summary judgment.

Finally, Plaintiff moved for leave to amend his Complaint, ECF No. 36. For

reasons explained below, the Court DENIES that motion as well.

1 The Court dismissed Defendant Licking County, Ohio, from this case in an Opinion

and Order issued on March 21, 2019. Op. & Order, ECF No. 32.

I. FACTS

On July 4, 2014, Plaintiff was charged with a minor misdemeanor traffic

offense. Compl. 5, ECF No. 1. Plaintiff contested the violation, and the case

went to trial. The present case stems from information about Plaintiff that was

posted to the Municipal Court’s public docket related to his criminal traffic case.

For ease of readability, the Court discusses below the pertinent facts and the

basis for Plaintiffs claims against Phelps and Moore separately.

A. Phelps

Plaintiff's traffic ticket, as are all traffic tickets issued in Licking County, was

filed with the Clerk of Court at the Licking County Municipal Court (“Municipal

Court’) for further processing. Phelps Aff. 1-2, ECF No. 22-2. Phelps, as Clerk

of Court, then entered data from Plaintiff's traffic ticket—including his name,

address, and date of birth—into the Municipal Court’s case management system.

That data became part of Plaintiffs online, publicly viewable case docket on the

Municipal Court's website. /d. at 1.

The Municipal Court states that it maintains the online docket for the

benefit of the public, “so a defendant can access their case file, make payments,

see hearing dates, or obtain other information about the case.” /d. Individuals

may search for a case docket using an offender's name, address, date of birth,

license plate number, or traffic ticket number. Ex. F., ECF No. 16-3. A vehicle’s

license plate number is not displayed on the public docket; but an individual’s

name, address, and date of birth are displayed on the public docket. Phelps Aff.

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2, ECF No. 22-2; Ex. E, ECF No. 16-2. Phelps acknowledges that she, as Clerk

of Court, “determines [the] information that will be accessible on the [Municipal

Court's] website.” Interrogatories 5, ECF No. 16-6.

Plaintiff brings this action against Phelps, alleging that by making his

personal information publicly available through the Municipal Court’s website,

she violated the DPPA, a statute that regulates disclosure of an individual's

personal information stored in a state motor vehicle record. See generally

Compl., ECF No. 1. He seeks damages and injunctive relief against Phelps and

the City of Newark as Phelps’s employer. /d. at 7-8.

B. Moore

Plaintiff's traffic case was prosecuted by Tricia Moore, assistant Law

Director for the City of Newark. Moore Dep. 9:7—-10, ECF No. 41; Lucas Dep.

26:23-24, ECF No. 44. During the course of proceedings, Plaintiff requested

discovery. Compl. 2, ECF No. 1. In response, Moore produced discovery to

Plaintiff and filed a copy of her discovery response with the Municipal Court.

Moore Dep. 37:1—19, ECF No. 41. The discovery documents contained a one-

page copy of Plaintiff's motor vehicle record setting forth Plaintiffs history of

traffic violations. Pl.’s Mot. Summ. J., Ex. J. (Sealed). That record also

contained Plaintiffs personal identifiers, including his Social Security Number

(“SSN”), date of birth, and other personal information. /d. The discovery

documents, including the motor vehicle record, were not filed under seal, and

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Plaintiff's personal information was not redacted from the filing. Moore Dep.

35:8-9, ECF No. 41; Compl. 5, ECF No. 1.

On the day of trial, Plaintiff moved to dismiss his traffic citation, in part,

because Moore, according to Plaintiff, had intentionally withheld evidence.

Phelps’s Cross Mot. Summ. J., Ex. C, ECF No. 22-3, PagelD ## 162-68. In

support of the motion Plaintiff filed a copy of the produced discovery, which

contained the same unredacted copy of Plaintiffs motor vehicle record that was

originally filed by Moore. Moore Dep. 93:10-94:6, ECF No. 41. The Municipal

Court denied the motion to dismiss, and the case continued to trial. Ultimately,

Plaintiff was convicted. See State v. Vincent Lucas, 14TRDO765-A (unpublished)

(upheld on appeal).

Years later, Plaintiff realized that the discovery documents in his traffic

case were unredacied, unsealed, and thus available to the public. Compl. 2,

ECF No. 1. He found that out when he went to the Municipal Courts Clerk's

Office and requested to see a copy of his complete file. Pl.’s Mot. Summ. J. 2-3,

ECF No. 48. Upon receiving a copy of his file with Moore’s unredacted discovery

disclosure included,” Plaintiff commenced the present lawsuit. /d.

2 The parties dispute whether the unredacted motor vehicle record included in the file

that Plaintiff viewed at the Clerk’s Office was the copy Moore filed with her discovery

production or the copy that Plaintiff filed along with his motion to dismiss the traffic

violation. Df.’s Mot. Summ. J. 3-4, ECF No. 45; Pl.’s Mot. Summ. J. 2-3, ECF No. 48.

Construing the facts in the light most favorable to Plaintiff, as the Court must for

Defendants’ motion for summary judgment, the Court assumes that the copy Plaintiff

viewed with his file was the copy filed by Moore.

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Plaintiff contends that when Moore filed an unredacted, unsealed copy of

Plaintiffs motor vehicle record with the Municipal Court, she disclosed Plaintiff's

personal information to the public in violation of the DPPA. See generally

Compl., ECF No. 1. He seeks damages and injunctive relief against Moore and

the City of Newark as Moore’s employer. /d. at 7-8.

I! STANDARD OF REVIEW

A party is entitled to summary judgment if he or she “shows that there is no

genuine dispute as to any material fact and [he or she] is entitled to judgment as

a matter of law.” Fed. R. Civ. P. 56(a). When reviewing a summary judgment

motion, the Court draws all reasonable inferences in favor of the nonmoving

party and refrains from making credibility determinations or weighing the

evidence. Pittman v. Cuyahoga Cty. Dep’t of Children and Family Servs., 640

F.3d 716, 723 (6th Cir. 2011). Summary judgment will not lie if the dispute about

a material fact is genuine, “that is, if the evidence is such that a reasonable jury

could return a verdict for the nonmoving party.” Anderson v. Liberty Lobby, Inc.,

477 U.S. 242, 248 (1986); Barrett v. Whirlpool Corp., 556 F.3d 502, 511 (6th Cir.

2009). Thus, the central issue is “whether the evidence presents a sufficient

disagreement to require submission to a jury or whether it is so one-sided that

one party must prevail as a matter of law.” Pittman, 640 F.3d at 723 (quoting

Anderson, 477 U.S. at 251-52).

The standard of review for cross motions for summary judgment does not

differ from the standard applied when a motion is filed by one party to the

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litigation. Taft Broad. Co. v. United States, 929 F.2d 240, 248 (6th Cir. 1991).

Each party bears the burden of establishing that no genuine issue of material fact

exists and that it is entitled to judgment as a matter of law. The fact that one

party fails to satisfy that burden does not indicate that the opposing party is

entitled to summary judgment on its motion. Rather, courts “evaluate each

motion on its own merits and view all facts and inferences in the light most

favorable to the nonmoving party.” Hensley v. Gassman, 693 F.3d 681, 686 (6th

Cir. 2012) (quoting Wiley v. United States, 20 F.3d 222, 224 (6th Cir. 1994)).

lil. ANALYSIS

The DPPA “regulates the disclosure of personal information contained in

the records of state motor vehicle departments.” Reno v. Condon, 528 U.S. 141,

143 (2000). It prohibits a state department of motor vehicles (“DMV’) from

“knowingly disclos[ing] or otherwise mak[ing] available to any person or

entity . . . personal information” or “highly restricted personal

information . . . obtained by the [DMV] in connection with a motor vehicle record,”

unless the disclosure is made for a specific purpose permitted by the statute. 18

U.S.C. § 2721(a). And the DPPA prohibits “authorized recipient[s] of personal

information” from reselling or redisclosing the information for a use not permitted

by the statute. /d. § 2721(c). The statute creates a private right of action against

any “person who knowingly obtains, discloses or uses personal information, from

a motor vehicle record, for a purpose not permitted” by the statute. /d. § 2724(a).

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Under the DPPA, “personal information” is defined as any “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, but does not

include information on vehicular accidents, driving violations, and driver's status."

Id. § 2725(3). “Highly restricted personal information” means “an individual’s

photograph or image, social security number, medical or disability information[.]”

Id. § 2725(4).

The statute lists fourteen permissible purposes for which personal

information in a motor vehicle record may be disclosed, obtained, or used. /d.

§ 2721(b). Two permissible purposes are relevant here:

(1) For use by any governmental 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.

use in connection with any civil, criminal, administrative, or

arbitral proceeding in any Federal, State, or local court or agency

... including the service of process, investigation in anticipation of

litigation, and the execution or enforcement of judgments and

orders[.]

Id. §§ 2721(b)(1), (4). Plaintiff bears the burden of proving that his personal

information was used for an impermissible purpose under the DPPA. Thomas v.

George, Hartz, Lundeen, Fulmer, Johnstone, King & Stevens, P.A., 525 F.3d

1107, 1111 (11th Cir. 2008) (“In reading § 2724(a) and § 2721(b) together, we

Case No 2?:18-rv-5R8? Pane 7 nf 39

conclude that the DPPA is silent on which party carries the burden of proof and,

as such, the burden is properly upon the plaintiff.”).

The Court addresses Plaintiffs claims against Phelps, Moore, and the City

in turn.

A. Phelps

As an initial matter, Phelps asserts that she is entitled to absolute quasi-

judicial immunity on Plaintiffs claim against her because entering Plaintiffs

personal information into the Municipal Court’s case management system was

part and parcel of her official duties of overseeing the Court’s docket. The court

agrees that it seems Phelps is entitled to “absolute quasi-judicial immunity for

damages as [her] duties are related to the [Municipal CJourt’s judicial process."

Mwonyonyi v. Gieszi, 895 F.2d 144 (Table), 1990 WL 10713, *2 (6th Cir. Feb. 9,

1990). This conclusion does not resolve Plaintiffs claim for injunctive relief,*

however, or Plaintiff's claim for vicarious liability against the City. Accordingly,

the Court addresses whether Phelps’s disclosure of Plaintiff's information in fact

violates the DPPA.

In a way, the Court's previous Opinion and Order on Licking County's

motion to dismiss could resolve the parties’ motions for summary judgment on

3 The Court construes Plaintiffs request for an order enjoining the Municipal Court from

disclosing his personal information on the public docket, Compl. 8, ECF No. 1, as an

identical request as to Phelps, since Phelps is the Clerk of Court responsible for

entering this information in the system in the first place. Plaintiff also asserts in his

Response that he is bringing a claim for injunctive relief against Phelps. Resp. 12, ECF

No. 25.

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Plaintiff's claim against Phelps in short order. When it granted Licking County’s

motion to dismiss, the Court stated that among its reasons for doing so was

Plaintiff's failure to allege that Phelps disclosed Plaintiff's personal information on

the Municipal Court’s website for an impermissible purpose. Op. & Order 6, ECF

No. 32. As the Court explained in that Opinion:

[U]nder the DPPA, personal information may be disclosed “[flor

use by any government agency, including any court or law

enforcement agency, in carrying out its functions[.]” 18 U.S.C.

§ 2721(b)(1). Further, personal information may be disclosed “[flor

use in connection with any civil, criminal, administrative, or arbitral

proceeding in any .. . local court or agencyj.]” 18 U.S.C. § 2721(b)(4).

Here, Plaintiff's name, address, and date of birth were published on

the summary report of Plaintiff's traffic case on the Licking County

Municipal Court's website. While there could conceivably be

instances where personal information is published that is not in

connection with the case, that is not the case here. As a matter of

common sense, a court and the public, who is entitled to open access

to the courts, need to be able to identify and differentiate between

potential litigants with the same name. The mere publication of a

name and address in the summary report of Plaintiff's traffic case is

not the type of disclosure that Congress intended to prohibit under the

DPPA. See e.g., Protecting Driver Privacy: Hearing on H.R. 3365

Before the Subcomm. on Civil and Constitutional Rights of the House

Comm. on the Judiciary, 103d Cong., 2d Sess., 1994 WL 212698

(1994) (statement of Congressman James P. Morgan) (“Careful

consideration was given to the common uses now made of this

information and great efforts were made to ensure that those uses

were allowed under this bill. . . [including] for use in any civil or criminal

proceeding.”). The Court therefore finds that publishing Plaintiff's

name and address as part of the docket heading for his traffic case is

a permissible use under 18 U.S.C. §§ 2721(b)(1) and (4).

Id. at 6—7. Although that conclusion should be dispositive of Plaintiffs claim

against Phelps, the Court arrived at that conclusion when considering Licking

County’s motion to dismiss only—Phelps did not file her own motion to dismiss.

Case No ?:'18-ry-582? Dane Ont 29

Accordingly, it is only now, after receiving the parties’ cross motions for summary

judgment, that the Court may fully consider the parties’ arguments in relation to

Plaintiff's claim against Phelps.

After doing so, however, the Court sees no reason to revisit the conclusion

reached in its previous Opinion and Order. For the reasons stated above,

Phelps’s disclosure of Plaintiff's personal information on the Municipal Court’s

website was for a permissible purpose under subsections {b){1) and (b)(4). In

addition to those reasons, as Phelps explains now, maintaining a public docket

allows defendants to “access their case file, make payments, see hearing dates,

or obtain information about the case.” Phelps Aff., Ex. B, J 9, ECF No. 22-2.

Additionally, the Municipal Court makes “[a] defendant’s name, address, and

date of birth,” but not license plate number, “viewable so that a person can verify

they are viewing the docket related to their citation.” id. J] 10-12.

Plaintiff argues that the Municipal Court could have restricted the

accessibility of the information on the public docket in various ways such as by

“print[ing] a unique password on each traffic ticket” so that only the defendant

would have access to the online docket. Mot. 4, ECF No. 16. But Plaintiff's

arguments have to do with the “best practices” for case management—practices

which the statute does not regulate. Senne v. Vill. of Palatine, ill., 695 F.3d 597,

606 n.12 (7th Cir. 2012) (“We . . . emphasize that we do not read ‘use’ [in the

DPPA] te mean ‘necessary use,’ nor do we require the [defendant] to adopt some

form of ‘best practices’ not commanded by the statute.”). Plaintiff thus fails to

Case No 2:18-cv-58? Pane 19 nf 99

carry his burden of showing that Phelps used or disclosed his personal

information for a purpose not allowed by the DPPA.

Even setting aside the purpose for the use and disclosure of Plaintiff's

personal information, Plaintiff's claim would fail for another reason not addressed

in the Court’s previous Opinion and Order. Plaintiffs personal information, as

Phelps received it, did not come from a motor vehicle record. Instead, it came

from a police officer’s traffic citation. Again, the DPPA prohibits the disclosure of

personal information “from a motor vehicle record” for a purpose not permitted by

the statute. 18 U.S.C. § 2724(a). And the statute defines a “motor vehicle

record” as “any record that pertains to a motor vehicle operator's permit, motor

vehicle title, motor vehicle registration, or identification card issued by a

department of motor vehicles.” /d. § 2725(1). Traffic citations do not pertain to

documents issued by a department of motor vehicles. Therefore, they do not

count as “motor vehicle records.” See Whitaker v. Appriss, Inc., No. 3:13-CV-

826-RLM-CAN, 2014 WL 4536559, *8 (N.D. Ind. Sept. 11, 2014) (‘[A] ticket,

issued by [a] . . . police department, [is not] a motor vehicle record.” (citing

senne, 695 F.3d at 602-03, 609}). When Phelps entered into the Municipal

Court’s case management system the information that appeared on Plaintiff's

traffic citation, she did not use or disclose personal information “from a motor

vehicle record.” 18 U.S.C. § 2721(b).

A district court case from the Northern District of Illinois does not persuade

the Court to interpret the DPPA differently. In Pavone v. Law Offices of Anthony

Caca No 2°18.py5R9 Pane 11 of 29

Mancini, Ltd., 205 F. Supp. 3d 961, 964 (N.D. Ill. 2016), the district court held that

an attorney who sent a solicitation letter to a recently wrecked motorist could be

liable under the DPPA for using the motorist’s personal information for an

impermissible purpose even if the attorney obtained that information from a crash

report on a third-party website instead of from a motor vehicle record. The court

concluded that the DPPA protects any information that originates from a motor

vehicle record. /d. (“[I]f the original source of the other government agency’s

information is the state department of motor vehicles, the DPPA protects the

information throughout its travels.” (alteration in original; emphasis added)

(quoting Whitaker, 2014 WL 4536559 at *4). The Pavone court therefore

concluded that the attorney could be liable for using the motorist’s information for

an impermissible purpose if he knew that the information in the crash report

originated from the state’s DMV as opposed to any other source. /d.

The Pavone court's interpretation of the statute, however, is inconsistent

with the statute’s plain language. By its unambiguous terms, the DPPA governs

the “officer[s], employee[s], or contractor[s]” of state departments of motor

vehicles who “disclose or otherwise make available” personal information from a

motor vehicle record as well as the DMV’s “authorized recipient[s]” of a motor

vehicle record who “resell or redisclose the [personal] information” contained

therein. 18 U.S.C. § 2721(a), (c). No statutory language brings in those who

receive personal information from a source other than a motor vehicle record.

For a non-DMV officer, employee, or contractor to fall within the DPPA’s

Cace No 3:-18-ry-522 Pana 19 nf 929

coverage, the individual must obtain another’s personal information directly “from

a motor vehicle record.” /d. § 2724(a). See Maracich v. Spears, 570 U.S. 48, 51

(2013) (explaining that the DPPA covers the “obtaining [of] personal information

from a state DMV’ (emphasis added)); see also Mattivi v. Russell, No. 01-WN-

533(BNB), 2002 WL 31949898, *4 (D. Colo. Aug. 2, 2002) (dismissing a DPPA

claim against a state newspaper for the release of personal information

contained in a traffic citation because the DPPA only covers information

contained in “records issued by a department of motor vehicles”). This

interpretation is also consistent with the dual purposes behind the statute’s

enactment: “a growing threat from stalkers and criminals who could acquire

personal information from state DMVs” and “the States’ common practice of

selling personal information to businesses engaged in direct marketing and

solicitation.” Maracich, 570 U.S. at 57 (emphasis added).

Accordingly, the Court rejects the reasoning adopted by Pavone and finds

that because Phelps obtained Plaintiffs personal information from a traffic

citation, not a motor vehicle record, she cannot be liable under the DPPA. But

even if Phelps had received Plaintiffs personal information from a motor vehicle

record, there is no dispute of material fact that she used and disclosed it for a

permissible purpose under 18 U.S.C. §§ 2721(b)(1) and (4). For these reasons,

the Court GRANTS Phelps’s motion for summary judgment and DENIES

Plaintiff's motion for summary judgment.

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B. Moore

As an initial matter, Moore argues that she is entitled to prosecutorial

immunity on Plaintiffs claim for damages against her. The Court agrees. See

Adams v. Hanson, 656 F.3d 397, 402 (6th Cir. 2011). But, just as with Phelps,

the Court proceeds to consider the merits of Plaintiff's DPPA claim against Moore

anyway, because doing so is necessary to resolve Plaintiff's claims for injunctive

relief against Moore and for vicarious liability against the City.

The parties do not dispute that Moore used and disclosed Plaintiff's

personal information that she obtained from a motor vehicle record. Indeed, the

record clearly establishes that Plaintiff's personal information was included in the

motor vehicle record contained within Moore’s discovery response. Thus,

Plaintiff's claim against Moore comes down to whether Moore’s use and

disclosure fell within one of the DPPA’s permissible purposes. There is no

dispute of material fact that it did.

Like Phelps, Moore used and disclosed Plaintiff's personal information for

purposes permitted by 18 U.S.C. §§ (b)(1) and (b)4): for use by a government

agency in carrying out its functions, (b1), and for use in connection with a

criminal proceeding, (b)(4). When Moore turned over the motor vehicle

document containing his personal information, she did so in response to

Plaintiff's discovery request. Responding to a discovery request is a necessary

part of the prosecutorial functions of Moore’s agency, (b)(1), and an integral

component of criminal proceedings, (b)(4). Additionally, by filing the discovery

Case No. 2:18-cyv-582 Pane 14 of 99

response on the docket, Moore furthered her agency’s common practice of

creating a record with the court in the event of a discovery dispute. Moore Dep.

42:24-25, ECF No. 41; Ex. E, ECF No. 41-6. In fact, a discovery dispute actually

occurred in Plaintiff's traffic case. Df.’s Mot. Summ. J. 5-6, ECF No. 45; Pl.’s

Mot. Summ. J. 10-11, ECF No. 48. Moore’s discovery filing on the Municipal

Court's docket created the record that aided the Judge’s resolution of the parties’

dispute. So docketing the discovery response further accomplished the

permissible purposes of subsections (b)(1) and (b)(4}—it aided Moore’s agency

in carrying out its prosecutorial functions and in resolving the parties’ discovery

disputes during a criminal proceeding. Moore’s use and disclosure of Plaintiff's

personal information was thus permissible under the DPPA.

Plaintiff does not dispute that, as a general matter, it was permissible for

Moore to disclose Plaintiff's personal information to him, as the defendant entitled

to discovery. But Plaintiff asserts that, under the DPPA, his personal information

should have been redacted from the motor vehicle record included in the docket

filing or that the entire discovery response should have been filed under seal.

For this position, Plaintiff relies on the Supreme Court’s statement in Maracich

that the DPPA’s exceptions to the general prohibition against disclosure of

personal information should be “read narrowly” in order to preserve “the DPPA’s

purpose of protecting an individual’s right to privacy in his or her motor vehicle

records.” 570 U.S. at 60-61 (ellipsis omitted). Under an appropriately narrow

interpretation of the (b)(1) and (b)(4) exceptions, Plaintiff asserts, Moore must be

Case No ?'718-ry-582 Pane 15 af 399

able to demonstrate why filing his personal information on the public docket was

necessary to further the prosecution of his case and thus justified overriding his

privacy interest in his personal information. Mot. 6, ECF No. 48. Plaintiff further

contends that, because Moore has not offered a good reason for the unredacted

and unsealed public filing sufficient to override his privacy interest, Moore’s filing

violates the DPPA.

Plaintiff raises legitimate concerns regarding the protection of sensitive

information in court filings. Yet those concerns do not support his overly narrow

reading of the DPPA’s exceptions. Under Plaintiff's interpretation of the DPPA’s

exceptions, a use or disclosure of personal information is never permissible if a

greater range of people gain access to an individual’s personal information than

was absolutely necessary to achieve the purpose for which it was used or

disclosed. The text of the DPPA, however, does not support that interpretation.

The DPPA simply states that a “recipient of personal information . . . may resell

or redisclose the information only for a use permitted under subsection (b)[.]”’ 18

U.8.C. § 2721(c). Subsection (b), in turn, states that disclosure of personal

information is permissible when it is “[flor use by any government agency...

carrying out its functions,” (b)(1), or “[flor use in connection with

any... criminal... proceeding,” (b)(4). The statute’s text thus makes the

permissibility of the use or disclosure of personal information dependent upon the

overarching purpose for the use or disclosure, not on the potential range of

people who might have access to information as a result of the use or disclosure.

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As the Sixth Circuit has recognized, Congress wrote the DPPA “in a way that

logically put[s] the focus on the purpose for which the information would

eventually be used.” Sifes v. Ascom Transp. Syst, inc., 478 F. App’x 283, 291

(6th Cir. 2012) (quoting Howard v. Criminal Info. Servs., Inc., 654 F.3d 887, 891

(9th Cir. 2011)). Plaintiff fails to show that Moore’s permissible use and

disclosure of Plaintiff's information—to respond to his discovery request and

create a court record—became impermissible because the filing was unredacted

and unsealed and thus became accessible to a larger group of people than was

absolutely necessary.

In different settings, court have held that if a company obtains more

personal information than may be necessary to further its permissible business

uses, that does not invalidate the permissible use for which the information was

obtained in the first place. See, e.g., Wiles, 478 F. App’x at 190-91 (concluding

that bulk obtainment of a DMV’s database for a company to verify personal

information submitted by potential future customers (i.e., “stockpiling” of personal

information) was permissible under the DPPA’s business exception). Similarly, if

an individual’s personal information is disclosed to a wider audience than is

absolutely necessary to further a permissible use, that does not alter the fact that

the use itself was permissible. Cf Senne v. Vill. of Palatine, 6 F. Supp. 3d 786,

794, 797 (N.D. Ill. 2013) (finding that it was permissible, under the DPPA’s law

enforcement exception, to disclose personal information on a parking ticket

placed on an individual’s windshield when displaying that information could be

Case No 2:18-ry-589 Pane 17 of 32

helpful to other police officers attempting to verify an offender's identity, despite

the fact that the information also became publicly viewable as a result of the

disclosure).

This conclusion is not inconsistent with the Supreme Court’s reading of the

DPPA in Maracich. It is true, as Plaintiff arques, that the Maracich Court held

that the exceptions to the DPPA’s general use and disclosure prohibitions must

be read narrowly. Maracich, 570 U.S. at 60. But in that case, the Court ruled

that an entire category of uses—an attorney's solicitation letters to potential

clients—fell outside of the statute’s exception allowing personal information to be

used “in connection with . . . investigation in anticipation of litigation.” /d. at 59.

Here, Plaintiff does not suggest that using and disclosing personal information for

discovery purposes is impermissible under the DPPA as a categorical matter.

He argues instead that his personal information should have been redacted from

the discovery filing. But whether Plaintiffs personal information was redacted

does not alter the underlying purpose for which it was used and disclosed.

This is not to de-legitimize Plaintiff's concerns about how Moore handled

the disclosure of sensitive personal information—particularly his social security

number—in the course of Plaintiff's traffic proceeding. it may be advisable and

generally good practice for prosecutors to redact highly sensitive information

such as SSNs from all publicly filed records. The DPPA, however, does not

impose any “best practice” requirements on the handling of sensitive personal

information that is used or disclosed for a permissible purpose. See Senne, 695

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F.3d at 606 n.12. Other state sources, applicable to all Ohio courts, do impose

such “best practice” requirements. Ohio Sup. R. 1(A), 45(D)(1) (“When

submitting a case document to a court or filing a case document with a clerk of

court, a party to a judicial action or proceeding shall omit personal identifiers from

the document.”). Plaintiff asserts that Moore's public filing ran afoul of Ohio Rule

of Superintendence 45(D\1). Whether it did, however, has no bearing on

whether the disciosure was permissible under the DPPA; therefore, the Court

does not consider that argument here.

But in any event, the DPPA is an ineffective tool for curing Plaintiff's

privacy concerns over the public filing of documents containing his personal

information. It is helpful to remember that the DPPA targets only one document

contained in Moore’s discovery response: Plaintiff's motor vehicle record.

Notably, though, Moore’s discovery response contained other documents—

namely, Plaintiff's traffic citation—that include much of the same personal

information (i.e., Plaintiffs name, address, and birth date) appearing in Plaintiffs

one-page motor vehicle record targeted by this litigation. Ex. E, ECF No. 41-6

(Sealed). Plaintiff does not assert that Moore should have redacted the personal

identifying information in his traffic citation. (Indeed, he cannot, since his traffic

citation is not a motor vehicle record.) He argues only that Moore should have

redacted the personal information in his one-page motor vehicle record. Compl.

2, ECF No. 1; Mot. Summ. J. 2-3, ECF No. 48. However, because much of

Plaintiffs personal information would be easily accessible in other portions of his

Case No. 2'18-cv-582 Page 19 of 22

public case record, that redaction would still not achieve the privacy-protection

goal Plaintiff is after.

At the end of the day, there is no dispute of material fact that Moore used

and disclosed Plaintiffs personal information for permissible purposes under 18

U.S.C. §§ 2721(b)1) and (4). Accordingly, the Court DENIES Plaintiffs motions

for summary judgment as to his claim against Moore and GRANTS Moore’s

motion for summary judgment.

C. The City

Plaintiff also brings a DPPA claim against the City, as Phelps’s and

Moore’s employer, under a theory of vicarious liability for Phelps’s and Moore’s

alleged violations of the DPPA. The DPPA itself is silent as to whether vicarious

liability applies to DPPA claims. No circuit court has addressed the issue, and

the district courts to have done so are split. Orduno v. Pietrzak, No. CV 14-1393

ADM/DTS, 2017 WL 4354686, at *5 (D. Minn. Sept. 29, 2017) (collecting

cases), aff'd, 932 F.3d 710 (8th Cir. 2019). The Court need not address whether

the DPPA allows for vicarious liability, however, because there is no dispute of

material fact that neither Phelps nor Moore violated the statute. Therefore, the

City cannot be vicariously liable for their actions. See, e.g., Margan v. Niles, 250

F. Supp. 2d 63, 75 (N.D.N.Y. 2003). Accordingly, the Court DENIES Plaintiffs

motion for summary judgment as to his claim against the City and GRANTS the

City’s motion for summary judgment.

Case No. 2:18-cv-58?2 Page 20 of 22

IV. PLAINTIFF’S MOTION FOR LEAVE TO AMEND

Finally, Plaintiff seeks leave to amend his Complaint. Mot., ECF No. 36.

The motion in support of leave to amend reads more like a motion for

reconsideration of the Court’s Opinion and Order dismissing Licking County from

the case than a motion for leave to amend. First, Plaintiff raises additional

arguments regarding Congress's motivation for enacting the DPPA and whether

birth dates are included in the category of personal information that the statute

protects. /d. at 1-7. Plaintiff asserts that he wants to add allegations in the

Complaint that any person can use another’s license plate numbers to look up

their personal information on the Municipal Court's website and that a date of

birth is a personal identifier. fd. Second, Plaintiff argues that Moore receives

part of her salary from Licking County and that this fact was made known to

Plaintiff only after receiving certain discovery documents from Defendants. /d. at

7. Therefore, Plaintiff asserts that Licking County is legally responsible for

Moore’s actions and his Complaint should be amended to add these facts and

restore Licking County as a defendant in the case. /d.

The Court denies Plaintiffs motion for leave to amend because any

amendment on these grounds would be futile. Fed. R. Civ. P. 15(a); Parchman

v. SLM Corp., 896 F.3d 728, 736 (6th Cir. 2018). Plaintiff's additional allegations

regarding the use of license plate numbers and birth dates have no bearing on

the Court's determination that Phelps (and thus Licking County) neither received

Plaintiffs personal information from a motor vehicle record nor used that

Case No. 2:18-cyv-582 Page ?1 of 22

information for a purpose not permitted by the DPPA. Moreover, whether Licking

County may be considered legally responsible for Moore’s actions is irrelevant

because the Court concludes that Moore’s actions did not run afoul of the DPPA.

Accordingly, Plaintiff's motion for leave to amend, ECF No. 36, is DENIED.

V. CONCLUSION

For all these reasons, the Court DENIES Plaintiff's motions for summary

judgment, ECF Nos. 16, 48, and 49, DENIES Piaintiffs motion for leave to

amend, ECF No. 36, and GRANTS Defendant’s motions for summary judgment,

ECF Nos. 22 and 45. The Clerk shall enter final judgment for Defendants and

terminate this case.

IT IS SO ORDERED.

UNITED STATES DISTRICT COURT

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