Gallagly et al v. Sun-Times Media, LLC

Filing 21

MEMORANDUM OPINION AND ORDER: Signed by the Honorable Harry D. Leinenweber on 9/5/2012:Mailed notice(wp, )

IN THE UNITED STATES DISTRICT COURT
FOR THE NORTHERN DISTRICT OF ILLINOIS
EASTERN DIVISION

SCOTT DAHLSTROM, HUGH
GALLAGLY, PETER KELLY, ROBERT
SHEA, and EMMET WELCH,
Plaintiffs,

Case No. 12 C 658

v.

Hon. Harry D. Leinenweber

SUN-TIMES MEDIA, LLC d/b/a THE
CHICAGO SUN-TIMES and Any
Other Known Corporate Name,
Defendant.

MEMORANDUM OPINION AND ORDER
Before the Court is Defendant’s Motion to Dismiss.

For the

reasons stated herein, the Motion is stayed for sixty (60) days to
allow the United States to intervene.
I.

BACKGROUND

On a motion to dismiss, the Court accepts as true the factual
allegations in the Complaint.

The Court will not repeat the lengthy

aftermath of the altercation which evidently arose between David
Koschman (“Koschman”) and R.J. Vanecko (“Vanecko”) on April 25, 2004,
and which ultimately resulted in Koschman’s death. Suffice it to say
that police and prosecutors have been criticized for their handling
of the case

in

light

of

Vanecko’s

high-profile

connections in

Chicago.
Defendant Chicago Sun-Times ran one such critical article on
November 21, 2001.

The story implicitly criticized the eyewitness

identification lineup into which Police placed Vanecko on the ground
that the officers who served as lineup “fillers” closely resembled
him

in

age

officer’s:

and

stature.

The

article

included

each

“filler”

name (including middle initial), birth month and year,

height, weight, hair color, and eye color.

It listed the source of

that data as the Chicago Police Department (the “CPD”) and the
Illinois Secretary of State.

See Compl. Exs. 1 & 2.

Those officers are the Plaintiffs here.

Before the story ran,

the CPD had given Defendant the lineup photos, along with Plaintiffs’
names, pursuant to a FOIA request.

Plaintiffs allege that Defendant

then used their names to obtain the other personal information in the
story from the Illinois Secretary of State’s motor vehicle records,
though it is unclear how it allegedly did so.
Plaintiffs claim that by acquiring and publishing personal
information from their motor vehicle records, Defendant violated
their rights under the Driver Privacy Protection Act (the “DPPA”), 18
U.S.C. § 2721 et seq., and endangered their well being. Plaintiffs
seek a declaratory judgment that Defendant violated the DPPA, an
injunction directing Defendant permanently to remove their personal
information from its publications, actual and/or statutory damages,
punitive damages, and fees and costs.
Defendant argues that the published information falls outside of
the DPPA, and alternatively that the DPPA violates First Amendment if
it bars Defendant from publishing this truthful information relevant
to its criticism of alleged government misconduct.
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Defendant also

argues that the requested injunction constitutes an impermissible
prior restraint of speech.
II.

LEGAL STANDARD

On a motion to dismiss under Rule 12(b)(6), the Court accepts as
true all well-pleaded facts in Plaintiffs’ Complaint and draws all
inferences in their favor. Cole v. Milwaukee Area Tech. Coll. Dist.,
634 F.3d 901, 903 (7th Cir. 2011).

A complaint must contain a “short

and plain statement of the claim showing that the pleader is entitled
to relief.”

FED. R. CIV. P. 8(a)(2).

That is, it “must contain

sufficient factual matter, accepted as true, to state a claim to
relief that is plausible on its face.”

Ashcroft v. Iqbal, 129 S.Ct.

1937, 1949-50 (2009).
III.
A.

DISCUSSION
Notice

The Court notes that although Defendant challenges the DPPA’s
constitutionality, it failed to comply with FED . R. CIV . P. 5.1, which
required it to serve the United States Attorney General with notice
of the motion and of the constitutional question.

Rule 5.1 also

requires this Court to certify to the Attorney General that a
statute’s constitutionality has been questioned; the Court does so
with this Order.

The Government has sixty (60) days hereafter in

which to intervene; in the interim, this Court may reject the
constitutional challenge, but may not enter a final judgment holding
a

statute

unconstitutional.

Id.

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Because

the

Court

finds

it

necessary to address the constitutional question, as discussed below,
it continues the Motion for sixty (60) days to permit the United
States to intervene.

Defendant must still comply with Rule 5.1,

however.
B.

Evidence Before the Court

Defendant has attached four exhibits to its Motion to dismiss.
Judge Toomin’s memorandum opinion in In Re Appointment of Special
Prosecutor, No. 2011 Misc. 46 (Ill. Cir. Ct. Apr. 6, 2012), a 2011
Illinois Attorney General letter ruling on the FOIA request related
to this case, and two handwritten court orders in a related case
previously filed by Plaintiffs and/or the Fraternal Order of Police
in the Circuit Court of Cook County.

Defendant appears to ask this

Court take judicial notice of these documents as public records, and
consider them here without converting its Motion to one for summary
judgment.
Courts may take judicial notice of court documents, though
generally not for the truth of matters asserted in them.

Gen. Elec.

Capital Corp. v. Lease Resolution Corp., 128 F.3d 1074, 1082 & n.6
(7th Cir. 1997).

The court documents are therefore noticed, though

not especially relevant.

Though it appears to be an official

document, Defendant has not established that the FOIA letter ruling
is a public record.

The Court accordingly declines to notice it

judicially or consider it in connection with the motion to dismiss.
See FED . R. CIV. P. 12 (d), (e).

The Court similarly disregards the

extrinsic evidence introduced in the body of the briefs - simply
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because something is accessible by hyperlink, rather than attached as
an exhibit, does not make it immune from Rule 12(d).
C.

Merits

18 U.S.C. § 2722 makes it unlawful “for any person knowingly to
obtain or disclose personal information, from a motor vehicle record,
for any use not permitted under Section 2721(b) of this title.”
Neither party argues that the Sun-Times’ conduct here falls within
any

of

the

14

permissible

uses

listed

in

§

2721(b).

Instead,

Defendant argues that the information disclosed in the article does
not fall within the statutory definition of “personal information”:
that which “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 [which] does not include
information on vehicular accidents, driving violations, and driver’s
status.”

18 U.S.C. § 2725(3).
1.

Defendant

Names and Photographs

undisputedly

published

Plaintiffs’

names

and

the

lineup photos; however, Defendant received that information through
FOIA.

Compl. ¶ 24.

(Plaintiffs’ brief seems to argue that the CPD

turned over only their first and last names, and to claim that their
middle initials came from motor vehicle records.

Although the

Complaint refers to Defendant using Plaintiffs’ “names” to obtain
their “full names,” this does not clearly allege that the names, as
published, reflected data from motor vehicle records instead of the
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FOIA request.)

Because they came from the FOIA materials, the names

and photographs cannot support a DPPA claim. McCormick v. Brzezinski,
No. 08–CV–10075, 2009 WL 174129, at *3 (E.D. Mich. Jan. 23, 2009).
2.

Other Information

In light of its First Amendment concerns, Defendant argues that
the definition of personal information should be limited to the
information expressly listed in the statute. Accordingly, it argues,
height, weight, eye color, and birth month and year do not fall
within the statute.

Plaintiffs contend that the totality of the

published data identifies them within the meaning of the statute.
Few

courts

precisely.

have

had

occasion

to

construe

this

definition

As Defendant notes, however, at least one District Court

has excluded birth dates from the statute, applying the interpretive
cannon of expressio unius est exclusio alterius. Camara v. MetroNorth R.R. Co., 596 F. Supp. 2d 517, 523 & n.9 (D. Conn. 2009).
Respectfully, the Court disagrees with Camara; use of the word
“including” usually makes a list illustrative rather than exhaustive.
Campbell v. Acuff-Rose Music, Inc., 510 U.S. 569, 577-78 (1994).
Nonetheless, there is a good argument under the statutory
cannons of association that “personal information” only includes
information that identifies a person with greater particularity than
does height, weight, or even birth month.

See United States v. Two

Plastic Drums, 984 F.2d 814, 817-18 (7th Cir. 1993) (discussing the
doctrines of noscitur a sociis and ejusdem generis).

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Recently,

however, the en banc Seventh Circuit has indicated that it disagrees.
See Senne v. Village of Palatine, Ill., --- F.3d ---, 2012 WL
3156335, at *9 (7th Cir. Aug. 6, 2012) (“The otherwise protected
information actually disclosed here included Mr. Senne’s full name,
address, driver’s license number, date of birth, sex, height and
weight.”)

Accordingly, the Court concludes, the information that

Defendant published falls within the ambit of “personal information”
under the DPPA.

Because the Court must reach the First Amendment

question, therefore, it continues the remainder of Defendant’s Motion
for sixty (60) days to permit the United States to intervene.
IV.

CONCLUSION

For the reasons stated herein, Defendant’s Motion to Dismiss is
stayed and continued for sixty (60) days to allow the United States
to intervene.

IT IS SO ORDERED.

Harry D. Leinenweber, Judge
United States District Court
DATE:9/5/2012

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