McClatchy Co. v. Town of Chapel Hill

657 F.Supp.3d 769

The MCCLATCHY COMPANY d/b/a The News and Observer Publishing Company;Capitol Broadcasting Company, Incorporated; DeMayo Law Offices, LLP;Marcari, Russotto, Spencer & Balaban, P.C., Plaintiffs, v. TOWN OF CHAPEL HILL, NORTH CAROLINA, Defendant.

1:21CV765

United States District Court, M.D. North Carolina

Signed February 23, 2023

Bradley M. Risinger, Fox Rothschild LLP, Raleigh, NC, for Plaintiffs The McClatchy Company, Capitol Broadcasting Company, Incorporated, Marcari, Russotto, Spencer & Balaban, P.C.

Jonathan Reid Reich, Reid Calwell Adams, Jr., Womble Bond Dickinson (US) LLP, Winston-Salem, NC, Bradley M. Risinger, Fox Rothschild LLP, Raleigh, NC, for Plaintiff DeMayo Law Offices, LLP.

Dan McCord Hartzog, Jr., Hartzog Law Group LLP, Raleigh, NC, Katherine Marie Barber-Jones, Town of Youngsville, Youngsville, NC, for Defendant.

MEMORANDUM OPINION AND ORDER

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"), 18 U.S.C. § 2721, et seq., does not bar a North Carolina law enforcement agency from releasing to the public, under applicable state laws, motor vehicle accident reports that contain the unredacted names and addresses of involved drivers. (Id. ¶ 1.)

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]." 18 U.S.C. § 2724(a). The statute defines "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." Id. § 2725(1).

Under the DPPA, state departments of motor vehicles ("DMVs") are generally prohibited from knowingly disclosing "personal information" to any person or entity. Id. § 2721(a)(1). As defined by the DPPA, "personal information" includes "an individual's photograph, social security number, driver identification number, name, address (but not the 5-digit zip code), [and] telephone number, . . . but does not include information on vehicular accidents, driving violations, and driver's status." Id. § 2725(3).

However, there are exceptions under the DPPA where state DMVs may properly disclose personal information. Specifically, 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.

Id. § 2721(b)(1), (14).

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))." Id. § 2721(c).

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. N.C. Gen. Stat. § 20-166.1(e). Within twenty-four hours of the accident, an investigating officer must "make a written report of the accident" for the relevant LEA. Id. The North Carolina Division of Motor Vehicles ("NCDMV") provides the forms and procedures for submitting these accident reports to LEAs. Id. § 20-166.1(h). These standardized report forms are formally called "DMV-349s." (ECF No. 39 at 4.) The Court refers to DMV-349s as "accident reports" herein.

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") officers complete accident reports from the Mobile Computer Terminal ("MCT") in their patrol vehicles. (Id. ¶ 6.) MCTs provide officers access to an NCDMV database. (Id.) Officers use the license plate number or name of the driver involved in an accident to query the NCDMV database, and database information then populates the accident report form. (Id.) All LEAs must forward completed accident reports to the NCDMV within ten days. N.C. Gen. Stat. § 20-166.1(e).

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); 18 U.S.C. § 2721(b)(1).

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 specifically provided by law.

N.C. Gen. Stat. § 132-1(b). A "public record" is defined as "all documents, papers, . . . electronic data-processing records, artifacts, or other documentary material," that is "made or received pursuant to law or ordinance in connection with the transaction of public business by any agency of North Carolina government or its subdivisions." Id. § 132-1(a).

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." Id. § 20-166.1(i). Similarly, the NCPRA mandates that "[e]very custodian of public records shall permit any record in the custodian's custody to be inspected and examined at reasonable times . . . ." Id. § 132-6(a).

Excluded from the definition of public records are "[r]ecords of criminal investigations conducted by public law enforcement agencies, records of criminal intelligence information compiled by public law enforcement agencies, and records of investigations conducted by the North Carolina Innocence Inquiry Commission." Id. § 132-1.4(a). The term "records of criminal investigations" refers to "all records or any information . . . compiled by public law enforcement agencies for the purpose of attempting to prevent or solve violations of the law, including information derived from witnesses, laboratory tests, surveillance, investigators, confidential informants, photographs, and measurements." Id. § 132-1.4(b)(1).

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," (id.). Plaintiffs allege that until March 2021, the CHPD regularly provided accident reports that identified drivers by name and address to all in-person requesters. (Id. ¶ 3; ECF Nos. 31-4 ¶ 8; 32 at 7.)

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 not 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." Fed. R. Civ. P. 56(a). "A dispute is genuine if a reasonable jury could return a verdict for the nonmoving party," and "[a] fact is material if it 'might affect the outcome of the suit under the governing law.' " Jacobs v. N.C. Admin. Off. of the Cts., 780 F.3d 562, 568 (4th Cir. 2015) (internal citations and quotations omitted). "[I]n deciding a motion for summary judgment, a district court is required to view the evidence in the light most favorable to the nonmovant" and to "draw all reasonable inferences in his favor." Harris v. Pittman, 927 F.3d 266, 272 (4th Cir. 2019) (citing Jacobs, 780 F.3d at 568). A court "cannot weigh the evidence or make credibility determinations," Jacobs, 780...