Wilcox v Bastiste et al

Filing 14

ORDER Granting 3 Preliminary Injunction; Plaintiff shall post a bond in the amount of $500.00. Signed by Judge Rosanna Malouf Peterson. (CV, Case Administrator)

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UNITED STATES DISTRICT COURT

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EASTERN DISTRICT OF WASHINGTON

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JADE WILCOX, on behalf of herself
and all others similarly situated,

NO: 2:17-CV-122-RMP

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Plaintiffs,
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ORDER GRANTING
PRELIMINARY INJUNCTION

v.
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JOHN BASTISTE and JOHN DOES
1-300,

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Defendants.

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BEFORE THE COURT is Plaintiff’s Motion for a Temporary Restraining

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Order and Preliminary Injunction, ECF No. 3. On May 25, 2017, the Court heard

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oral argument on the motion. James R. Sweetser and Thomas G. Jarrard appeared

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on behalf of Plaintiffs, and Assistant Attorney General Shelley A. Williams

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appeared on behalf of Defendants. The Court has considered the motion and the

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record and is fully informed.

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ORDER GRANTING PRELIMINARY INJUNCTION ~ 1

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BACKGROUND

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Plaintiffs filed this suit pursuant to the Driver’s Privacy Protection Act

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(“DPPA”), 18 U.S.C. § 2721-2725, which “regulates the disclosure of personal

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information contained in the records of state motor vehicle departments (DMVs).”

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Reno v. Condon, 528 U.S. 141, 143 (2000). In relevant part, 18 U.S.C. § 2721

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provides:

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A State department of motor vehicles, and any officer, employee, or
contractor thereof, shall not knowingly disclose or otherwise make
available to any person or entity:
. . . personal information, as defined in 18 U.S.C. 2725(3), about
any individual obtained by the department in connection with a motor
vehicle record, except as provided in subsection (b) of this section . . .
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The DPPA restricts those who work on behalf of the DMV and protects the

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information obtained from DMV records, as it makes it “unlawful for any person

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knowingly to obtain or disclose personal information, from a motor vehicle record,

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for any use not permitted under section 2721(b) of this title.” 18 U.S.C. § 2722.

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The statute then lists fourteen “permissible purposes” for which the protected

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information may be disclosed. See 18 U.S.C. § 2721(b).

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Following automobile accidents in Washington state, the Washington State

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Patrol (“WSP”) prepares collision reports containing personal information of the

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sort protected by the DPPA. It was represented at oral argument that the personal

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information is obtained from DMV records and uploads into a software program

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that the WSP troopers use to compose the collision reports. Currently, the WSP
ORDER GRANTING PRELIMINARY INJUNCTION ~ 2

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sells those collision reports to any third party without redacting various types of

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personal information. Plaintiffs seek a TRO and preliminary injunction:

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(1) enjoining Defendants from disclosing DPPA-protected “personal
information” of Plaintiffs and the [putative] Class to others without a
permissible purpose and/or (2) ordering redaction of the name, address,
driver license number, date of birth, sex, height, and weight of the
registered owner from all traffic collision reports it discloses, unless
and until a lawful or permissible purpose is identified.

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ECF No. 3.
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DISCUSSION
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“The standard for issuing a temporary restraining order is the same as that
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for the issuance of [a] preliminary injunction.” Dahlstrom v. Sauk-Suiattle Indian
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Tribe of Washington, No. C16-0052JLR, 2017 WL 413201, at *2 (W.D. Wash.
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Jan. 31, 2017) (citing New Motor Vehicle Bd. of Cal. v. Orrin W. Fox Co., 434
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U.S. 1345, 1347 n.2 (1977)). A preliminary injunction is “an extraordinary and
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drastic remedy, one that should not be granted unless the movant, by a clear
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showing, carries the burden of persuasion.” Lopez v. Brewer, 680 F.3d 1068, 1072
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(9th Cir. 2012) (emphasis in original) (quoting Mazurek v. Armstrong, 520 U.S.
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968, 972 (1997) (per curiam)). Ordinarily, to obtain a preliminary injunction, the
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moving party must “demonstrate that (1) he is likely to succeed on the merits of
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such a claim; (2) he is likely to suffer irreparable harm in the absence of
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preliminary relief; (3) the balance of equities tips in his favor; and (4) that an
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injunction is in the public interest.” Lopez, 680 F.3d at 1072 (citing Winter v.
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Natural Res. Def. Council, Inc., 555 U.S. 7, 20 (2008)).
ORDER GRANTING PRELIMINARY INJUNCTION ~ 3

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In conjunction with the four-part post-Winter test, the Ninth Circuit Court of

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Appeals has stated that “serious questions going to the merits and a balance of

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hardships that tips sharply towards the plaintiff can support issuance of a

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preliminary injunction, so long as the plaintiff also shows that there is a likelihood

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of irreparable injury and that the injunction is in the public interest.” League of

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Wilderness Defs./Blue Mountains Biodiversity Project v. Connaughton, 752 F.3d

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755, 759 n.1 (9th Cir. 2014) (quoting Alliance for the Wild Rockies v. Cottrell, 632

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F.3d 1127, 1135 (9th Cir. 2011)).

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(1) Likelihood of success on the merits

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As stated above, the DPPA unambiguously states that “[i]t shall be unlawful

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for any person knowingly to obtain or disclose personal information, from a motor

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vehicle record, for any use not permitted under section 2721(b) of this title.” 18

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U.S.C. § 2722. While Defendants argue that they redact certain information from

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some disclosures, they stated that the WSP “does not assert the DPPA to redact

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information in law enforcement reports such as collision reports.” ECF No. 5 at 5.

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In fact, during the course of this litigation, Defendants have changed their policy to

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disclose more information from collision reports, as they no longer redact dates of

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birth from collision reports that they sell.1

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In their response brief, Defendants previously stated that WSP redacts dates of

birth and driver’s license numbers from collision reports “if the requestor is not an
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Defendants argue that the DPPA does not apply to collision reports as the

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collision reports are not issued by the DMV that collects the information, but rather

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by the WSP that just uses the information collected by the DMV to populate the

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collision reports, and therefore, are not “motor vehicle record[s]” as defined in the

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DPPA. ECF No. 5 at 7. In other words, WSP appears to argue that the DPPA

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protections do not apply to the information when that information is conveyed to a

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third party. Defendants also argue that “the DPPA specifically excludes

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information on vehicular accidents from the definition of ‘personal information.’”

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ECF No. 5 at 7. However, this argument fails to address the contention that the

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personal information contained on collision reports could be redacted without

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impeding access to the details of traffic accidents.

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Although Defendants’ proffered interpretation of the DPPA has received

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some support in case-law, see e.g., Mattivi v. Russell, No. CIV.A. 01-WM-

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533(BNB, 2002 WL 31949898, at *4 (D. Colo. Aug. 2, 2002), it appears to conflict

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with the plain language of the DPPA considered in context. Taken together, the

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DPPA’s provisions seem to protect personal information if the original source of

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involved party or an authorized representative of an involved party,” ECF No. 5 at

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4, but counsel informed the Court during oral argument that WSP amended this

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policy now to redact only driver’s license numbers.

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that information is a DMV database. See Pavone v. Law Offices of Anthony

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Mancini, Ltd., 118 F.Supp.3d 1004, 1007 (N.D. Ill. 2015).

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Although the WSP is an authorized recipient of personal information that

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Troopers include in collision reports when they respond to accidents, Plaintiffs

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have provided evidence that the WSP sells that personal information on collision

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reports to third parties for purposes that would not be permitted under the DPPA.

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For example, Plaintiff, Wilcox, received an advertisement from an attorney who

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presumably had obtained her information from a collision report. See ECF No. 3-

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1. The United States Supreme Court held that such solicitation is not a permitted

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purpose under the DPPA. See Maracich v. Spears, 133 S. Ct. 2191 (2013).

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Defendants alternatively argue that if the DPPA is applicable here, the

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disclosure of collision reports is among the enumerated permissible purposes under

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the DPPA. ECF No. 5 at 11. Defendants are accurate that the DPPA allows for

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disclosure of personal information “[f]or any other use specifically authorized

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under the law of the State that holds the record, if such use is related to the

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operation of a motor vehicle or public safety.” 18 U.S.C. § 2721(b)(14).

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However, it is questionable whether Defendants will be able to prove that

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disclosure of an individual’s name, weight, height, address, phone number, and

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date of birth are “related to the operation of a motor vehicle or public safety” in

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any meaningful way. In addition, Plaintiffs submitted Exhibit J showing that

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WSP’s own “Public Records Exemption Codes List” notes specific circumstances
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when personal information should not be disclosed with relevant justifications.

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See ECF No. 3-12.

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Although the Court recognizes conflicting interpretations of the DPPA that

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may be further developed as this litigation proceeds, the Court finds that at this

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point that Plaintiffs have provided sufficient evidence to support a likelihood of

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success on the merits of their claims for this factor to weigh in their favor.

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(2) Irreparable harm

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Failure to show that irreparable harm will result in the absence of a

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preliminary injunction is fatal to a request for such relief. See All. for the Wild

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Rockies v. Cottrell, 632 F.3d 1127, 1135 (9th Cir. 2011) (“Winter tells us that

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plaintiffs may not obtain a preliminary injunction unless they can show that

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irreparable harm is likely to result in the absence of the injunction.”).

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Defendants recognize the intent of the DPPA to address concerns that

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include “a growing threat from stalkers and criminals who could acquire personal

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information from state DMVs.” ECF No. 5 at 6 (quoting Maracich v. Spears, 133

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S. Ct. 2191, 2198 (2013)). However, Defendants fail to recognize the irreparable

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harm done by disclosure of the same personal information that is at issue here.

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In the age of the internet, when information is made public quickly and

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without borders, it is nearly impossible to contain an impermissible disclosure after

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the fact, as information can live on in perpetuity in the ether to be shared for any

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number of deviant purposes. Based on the evidence before the Court, the Court
ORDER GRANTING PRELIMINARY INJUNCTION ~ 7

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finds that the WSP’s current practice of selling un-redacted collision reports could

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needlessly expose individuals who have been in automobile accidents in

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Washington to having their private information compromised. The likelihood of

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further irreparable harm justifies the extraordinary relief of a preliminary

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injunction.

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(3) The balance of equities

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The WSP argues that the harm it faces if the Court grants the relief sought

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by Plaintiffs is that an injunction “impairs the public’s right to access police

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collision reports under RCW 46.52.060 and the Public Records Act.” ECF No. 5

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at 14. However, the WSP acknowledges that they currently have procedures in

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place to redact information on disclosures when necessary and currently have

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policies allowing exemptions from public disclosure. See e.g., ECF No. 3-12.

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Therefore, the Court finds that it would be a minimal burden to place on

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Defendants to require the redaction of personal information, as defined by the

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DPPA, when a party requesting a collision report is not requesting the personal

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information for a permissible purpose enumerated under 18 U.S.C. § 2721(b).

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There appears to be no valid governmental purpose that is furthered by

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indiscriminately providing collision reports that display private individuals’

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personal information. Absent a preliminary injunction, the hardships imposed on

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individuals whose information is disclosed on collision reports are far-ranging and

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significant. Therefore, this factor weighs heavily in favor of Plaintiffs.
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(4) Public Interest

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WSP argues that an injunction is against the public interest because it would

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prohibit public access to useful information about collisions. As discussed above,

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the Court finds this argument unpersuasive.

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Although there is a valid public interest in the enforcement of federal

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statutes like the DPPA, this issue must be developed further at a later stage. Based

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on the evidence and arguments presently before the Court, the Court finds that the

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public has a vital interest in the protection of personal information and in

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preventing it from being sold indiscriminately to anyone who seeks collision

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reports for any purpose. Allowing the disclosure of personal information to

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continue pending the outcome of this litigation would undermine the very purpose

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of the DPPA.

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Conclusion

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Based on the Court’s consideration of the foregoing factors, the Court finds

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good cause to enter a preliminary injunction pursuant to the terms contained in

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Plaintiffs’ written motion.2

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numbers, but the Court finds these to be unnecessary redactions at present in light

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of all of the factors discussed above.

At oral argument, Plaintiffs also sought the redaction of names and telephone

ORDER GRANTING PRELIMINARY INJUNCTION ~ 9

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Accordingly, IT IS HEREBY ORDERED that:

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1. Plaintiffs’ Motion for a Temporary Restraining Order and Preliminary

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Injunction, ECF No. 3, is GRANTED.

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2. Within 14 days of entry of this Order, Defendants shall put into place a

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system of redacting addresses, driver license numbers, dates of birth, sex, height,

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and weight of registered owners from all traffic collision reports that it discloses

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unless and until the requestor of such information certifies under penalty of

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perjury that the information is sought for one of the fourteen permissible purposes

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under 18 U.S.C. § 2721(b).

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3. Pursuant to FED. R. CIV. P. 65(c), Plaintiff shall post a bond in the amount
of $500.00.
The District Court Clerk is directed to enter this Order and provide copies to
counsel.
DATED June 9, 2017.

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s/ Rosanna Malouf Peterson
ROSANNA MALOUF PETERSON
United States District Judge

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