State Ex Rel. Motor Carrier Service, Inc. v. Rankin , 135 Ohio St. 3d 395 ( 2013 )

[Cite as State ex rel. Motor Carrier Serv., Inc. v. Rankin, 135 Ohio St.3d 395, 2013-Ohio-
1505.]
THE STATE EX REL. MOTOR CARRIER SERVICE, INC., APPELLANT, v. RANKIN,
REGISTRAR, ET AL., APPELLEES.
THE STATE EX REL. MOTOR CARRIER SERVICE, INC. v. RANKIN,
REGISTRAR, ET AL.
[Cite as State ex rel. Motor Carrier Serv., Inc. v. Rankin, 135 Ohio St.3d 395,
2013-Ohio-1505.]
Public records—R.C. 149.43—Driver’s Privacy Protection Act—18 U.S.C.
2721—R.C. 4501.27—Driving records—Qualified person seeking
unredacted driving record of another that contains “personal
information” must make request in conformity with Ohio Adm.Code
4501:1-12-02(D)(2) by completing form BMV1173 and paying required
fee.
(Nos. 2012-1264 and 2012-1394—Submitted April 10, 2013—Decided
April 18, 2013.)
APPEAL from the Court of Appeals for Franklin County,
No. 10AP-1178, 2012-Ohio-2590.
IN MANDAMUS.
__________________
Per Curiam.
{¶ 1} This consolidated case is a public-records matter dealing with the
interplay of (1) Ohio’s Public Records Act, R.C. 149.43, (2) the federal Driver’s
Privacy Protection Act of 1994, 18 U.S.C. 2721 et seq. and its counterpart in
Ohio, R.C. 4501.27 (collectively, “the DPPA”), and (3) a Bureau of Motor
Vehicles (“BMV”) rule, Ohio Adm.Code 4501:1-12-02(D)(2).
{¶ 2} Case No. 2012-1394 is an original action in which relator, Motor
Carrier Service, Inc. (“MCS”), an Ohio trucking company, seeks a writ of
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mandamus to compel respondents, BMV Registrar Mike Rankin and Ohio
Department of Public Safety Director Thomas P. Charles, to provide an
unredacted, noncertified copy of the driving records of an MCS employee at cost.
The case is consolidated with case No. 2012-1264, a direct appeal from the Tenth
District Court of Appeals, involving the same parties and the same issues, but a
different driving record.
{¶ 3} In both cases, MCS requested unredacted copies of the driving
records of its employees from the BMV at cost. The BMV refused to provide
unredacted copies at cost—five cents per page—but instead, following the BMV
rule, required MCS to specify the basis for its entitlement to an unredacted copy
on form BMV1173 and to pay a $5 fee for a certified copy. MCS claims that it
does not need a certified copy and that it should be able to receive an unredacted
copy at cost under the Public Records Act.
{¶ 4} MCS is not entitled to a writ of mandamus, because disclosure of
the records is prohibited by the DPPA unless a requester can demonstrate a
permissible use, which it must do by complying with the procedure outlined in the
rule, Ohio Adm.Code 4501:1-12-02(D)(2). The BMV properly promulgated the
rule under its rule-making authority. The rule creates a procedure for requesting
DPPA-governed materials, which includes filling out and submitting form
BMV1173 and paying the $5 fee. The specific provisions of R.C. 4501.27 and
Ohio Adm.Code 4501:1-12-02(D)(2) prevail over the general provisions of R.C.
149.43, including the provision requiring that public records should be provided
“at cost.”
{¶ 5} For the following reasons, we affirm the Tenth District in case No.
2012-1264 and deny the writ in case No. 2012-1394.
Facts
{¶ 6} The BMV is a division of the Ohio Department of Public Safety
(“DPS”) and is a public office within the meaning of the Public Records Act.
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State ex rel. Mancini v. Ohio Bur. of Motor Vehicles, 69 Ohio St.3d 486, 633
N.E.2d 1126 (1994).
{¶ 7} The DPPA prohibits the disclosure of personal information that the
BMV has in connection with a driving record. R.C. 4501.27(A); 18 U.S.C.
2721(a). However, the DPPA permits disclosure for use by an employer or insurer
to obtain or verify information about the holder of a commercial driver’s license.
R.C. 4501.27(B)(2)(j); 18 U.S.C. 2721(b)(9). The federal DPPA does not
establish a procedure for requesting protected material from the BMV, but Ohio’s
statute grants the BMV rule-making authority to carry out its duties. R.C.
4501.27(E). The BMV promulgated Ohio Adm.Code 4501:1-12-02 under this
authority.
Case No. 2012-1264
{¶ 8} On August 31, 2010, MCS submitted a public-records request to
the BMV seeking an unredacted copy of the driving record of one of its
employees. In its request, MCS stated that the record was necessary to verify
information about the employee’s commercial driver’s license as required by the
Commercial Motor Vehicle Safety Act of 1986, 49 U.S.C. 2701 et seq. MCS did
not submit a form BMV1173 with its request, nor did it pay any fee.
{¶ 9} The BMV provided MCS with a copy of the driving record, but
with the employee’s personal information redacted. In a subsequent letter, an
attorney for DPS explained that the redaction is required by R.C. 149.43(A)(1)(v)
and the DPPA, unless the request is made by a statutorily exempted requestor for
statutorily defined purposes.
{¶ 10} MCS filed a mandamus action in the Tenth District Court of
Appeals, claiming that it was entitled to an unredacted copy of the driver’s record
at cost. The respondents countered that disclosure was prohibited by the DPPA
and that MCS had failed to demonstrate that any exception applied, because it
filed a request under the general public-records provision, Ohio Adm.Code
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4501:1-12-02(D)(1), rather than under Ohio Adm.Code 4501:1-12-02(D)(2),
which allows the requester to obtain unredacted records after showing that it
meets the statutory conditions and paying the $5 fee.
{¶ 11} The Tenth District magistrate recommended denial of the writ,
finding that because MCS had applied under Ohio Adm.Code 4501:1-12-02(D)(1)
rather than (D)(2), it was entitled only to a redacted copy. A majority of the panel
agreed, finding that a requester is not authorized to obtain an unredacted copy
unless the request conforms to section (D)(2) of the rule. State ex rel. Motor
Carrier Serv., Inc. v. Williams [Rankin], 10th Dist. No. 10AP-1178, 2012-Ohio-
2590. The BMV “has promulgated a rule requiring a requester to provide specific
information regarding the purpose of the intended use accompanied by a
certification of truthfulness.” Id. at ¶ 17. MCS did not follow this procedure, but
made a general public-records request. One member of the panel dissented in part
on the merits, asserting that the BMV, while authorized to promulgate the rule
requiring a special application for restricted information, went too far in its
requirement that an eligible requester “choose either a public records request to
receive a redacted copy or the completion of form BMV1173, request for a
certified abstract, and payment of a $5 fee to get a full copy.” Id. at ¶ 30 (French,
J., concurring in part and dissenting in part).
Case No. 2012-1394
{¶ 12} On July 3, 2012, MCS submitted a request, including a completed
BMV form, but again lacking the $5 fee, to BMV Registrar Rankin for a copy of
the unredacted, noncertified driving record of an employee. MCS again specified
that its request was to verify information relating to its employee’s commercial
driver’s license that is required under the Commercial Motor Vehicle Safety Act
of 1986. The DPS again provided only a redacted version of the requested
driving record, citing the DPPA and Ohio Adm.Code 4501:1-12-02.
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{¶ 13} On August 14, MCS filed case No. 2012-1394 as an original action
in this court for a writ of mandamus to compel respondents, BMV Registrar Mike
Rankin and DPS Director Thomas P. Charles, to provide access at cost to an
unredacted, noncertified copy of the employee driving record MCS requested in
its July 3, 2012 request. On October 1, 2012, an alternative writ was granted.
133 Ohio St.3d 1403, 2012-Ohio-4477, 975 N.E.2d 1022. At the same time, case
Nos. 2012-1394 and 2012-1264 were consolidated for consideration by the court.
Id. at 1402.
{¶ 14} This cause is now before the court for our consideration of the
merits.
Analysis
Request for oral argument
{¶ 15} The phrase “Request for Oral Argument” appears on the front page
of MCS’s Memorandum in Support of Writ in case No. 2012-1394, without
explanation in the memorandum or in any pleading. As part of their response to
the motion to consolidate, the BMV and DPS concur in that request, although
again with no explanation as to why oral argument is needed here.
{¶ 16} In cases in which oral argument is not mandatory—such as original
actions and direct appeals from cases originating in a court of appeals, see
S.Ct.Prac.R. 17.02(A)—we have discretion to grant oral argument, and “ ‘in
exercising this discretion, we consider whether the case involves a matter of great
public importance, complex issues of law or fact, a substantial constitutional
issue, or a conflict among courts of appeals.’ ” State ex rel. Jean–Baptiste v.
Kirsch, 134 Ohio St.3d 421, 2012-Ohio-5697, 983 N.E.2d 302, ¶ 10, quoting
State ex rel. Davis v. Pub. Emps. Retirement Bd., 111 Ohio St.3d 118, 2006-Ohio-
5339, 855 N.E.2d 444, ¶ 15.
{¶ 17} No conflict in the lower courts has been identified, and the case
involves an important, but narrow, issue of public-records law. The briefs are
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sufficient for us to resolve the appeal here. Jean–Baptiste at ¶ 13, citing State ex
rel. Otten v. Henderson, 129 Ohio St.3d 453, 2011-Ohio-4082, 953 N.E.2d 809,
¶ 19. We therefore proceed to decide the merits of the case without oral
argument.
Public Records Act analysis
{¶ 18} “Mandamus is the appropriate remedy to compel compliance with
R.C. 149.43, Ohio’s Public Records Act.” State ex rel. Physicians Commt. for
Responsible Medicine v. Ohio State Univ. Bd. of Trustees, 108 Ohio St.3d 288,
2006-Ohio-903, 843 N.E.2d 174, ¶ 6; R.C. 149.43(C)(1). Although “[w]e
construe the Public Records Act liberally in favor of broad access and resolve any
doubt in favor of disclosure of public records,” State ex rel. Rocker v. Guernsey
Cty. Sheriff’s Office, 126 Ohio St.3d 224, 2010-Ohio-3288, 932 N.E.2d 327, ¶ 6,
the relator must still establish entitlement to the requested extraordinary relief by
clear and convincing evidence. State ex rel. Doner v. Zody, 130 Ohio St.3d 446,
2011-Ohio-6117, 958 N.E.2d 1235, paragraph three of the syllabus (“Relators in
mandamus cases must prove their entitlement to the writ by clear and convincing
evidence”).
Clear and convincing evidence is “that measure or degree of proof
which is more than a mere ‘preponderance of the evidence,’ but not
to the extent of such certainty as is required ‘beyond a reasonable
doubt’ in criminal cases, and which will produce in the mind of the
trier of facts a firm belief or conviction as to the facts sought to be
established.”
State ex rel. Husted v. Brunner, 123 Ohio St.3d 288, 2009-Ohio-5327, 915 N.E.2d
1215, ¶ 18, quoting Cross v. Ledford, 161 Ohio St. 469, 120 N.E.2d 118 (1954),
paragraph three of the syllabus.
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{¶ 19} R.C. 4501.34(A) specifies that “all documents in the registrar’s
possession are public records.” R.C. 149.43(B)(1) requires a public office to
make copies of public records available at cost on request and within a reasonable
period of time. However, records or parts of records are exempt from this
requirement if their release is prohibited by state or federal law. R.C.
149.43(A)(1)(v).
{¶ 20} In 1994, the federal government enacted the DPPA to regulate the
disclosure and resale of personal information in the records of state motor-vehicle
departments. Pub.L. No. 103-322, 108 Stat. 2099; Reno v. Condon, 528 U.S 141,
143, 120 S.Ct. 666, 145 L.Ed.2d 587 (2000). In 2000, the Ohio General
Assembly followed suit, amending R.C. 4501.27 to comply with federal
requirements. 2000 Am.Sub.S.B. No. 600, 148 Ohio Laws, Part III, 6524, 6535;
Bailey v. Ohio Dept. of Motor Vehicles, 10th Dist. No. 02AP-378, 2002-Ohio-
7361, ¶ 30. Both the federal DPPA and its Ohio counterpart prohibit the BMV
from “knowingly disclos[ing] or otherwise mak[ing] available to any person or
entity” any “personal information” about an individual that the bureau obtained
“in connection with a motor vehicle record.” 18 U.S.C. 2721(a)(1); R.C.
4501.27(A). The Ohio statute defines “personal information” as “information that
identifies an individual, including, but not limited to, an individual’s photograph
or digital image, social security number, driver or driver’s license identification
number, name, telephone number, or medical or disability information, or an
individual’s address other than the five-digit zip code number.” R.C.
4501.27(F)(3); see also R.C. 4501.27(F)(5) (defining “sensitive personal
information”).
{¶ 21} DPPA’s ban on disclosure has exceptions, some requiring
disclosure (not pertinent here) and some permitting disclosure. One exception
allows the BMV to disclose personal information “[f]or use by an employer or by
the agent or insurer of an employer to obtain or verify information relating to the
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holder of a commercial driver’s license or permit that is required under the
‘Commercial Motor Vehicle Safety Act of 1986,’ 100 Stat. 3207-170, 49 U.S.C.
2701, et seq., as now or hereafter amended.” R.C. 4501.27(B)(2)(j). MCS claims
to be such an employer.
{¶ 22} Ohio’s DPPA establishes a procedure for requesting DPPA-
protected material from the BMV, by granting the BMV rule-making authority.
Specifically, R.C. 4501.27(E) states that “[t]he registrar of motor vehicles may
adopt any forms and rules, consistent with but no more restrictive than the
requirements of [the federal DPPA] that are necessary to carry out the registrar’s
duties under this section * * *.”
{¶ 23} Under that authority, the BMV promulgated Ohio Adm.Code
4501:1-12-02, which articulates the prohibitions and exceptions in the DPPA and
creates a procedure for requesting a motor-vehicle record. The rule creates two
options for requesting such records.
{¶ 24} First, the requester may make a public-records request under Ohio
Adm.Code 4501:1-12-02(D)(1). A request made under this section entitles the
requester to a copy of the record at cost, but with personal information redacted.
{¶ 25} A requester seeking an unredacted record containing personal
information may make a request under Ohio Adm.Code 4501:1-12-02(D)(2).
Under this section, the requester must complete form BMV1173 and submit “the
fees statutorily authorized in the Revised Code.” Form BMV1173 requires the
requester to provide proof of identity and to state which of the statutory
exceptions to nondisclosure of personal information applies. See Ohio Adm.Code
4501:1-12-02(G)(1) and (2). R.C. 4509.05(B) authorizes a fee of $5 for a
certified abstract of a driving record.
Ohio Adm.Code 4501:1-12-02 does not conflict with the Public Records Act
{¶ 26} A well-settled principle of Ohio law is that when two statutes, one
general and one specific, cover the same subject matter, the specific provision is
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to be construed as an exception to the general statute that might otherwise apply.
See State ex rel. Slagle v. Rogers, 103 Ohio St.3d 89, 2004-Ohio-4354, 814
N.E.2d 55, ¶ 14, citing State ex rel. Dublin Securities, Inc. v. Ohio Div. of
Securities, 68 Ohio St.3d 426, 429, 627 N.E.2d 993 (1994). This rule has also
been codified at R.C. 1.51:
If a general provision conflicts with a special or local
provision, they shall be construed, if possible, so that effect is
given to both. If the conflict between the provisions is
irreconcilable, the special or local provision prevails as an
exception to the general provision, unless the general provision is
the later adoption and the manifest intent is that the general
provision prevail.
{¶ 27} MCS’s argument here appears to be that the provisions of Ohio’s
Public Records Act, R.C. 149.43, are immune from that principle. MCS argues
that Ohio Adm.Code 4501:1-12-02(D)(2) is invalid because it “conflicts with
Ohio’s public records statute” and is “wholly inconsistent with the plain language
of R.C. 149.43.”
{¶ 28} More specifically, MCS complains that the rule “effectively
prohibits a DPPA-authorized requester from ever obtaining an unredacted,
uncertified copy of the record pursuant to Ohio’s public records laws.” The rule
also “forces the DPPA-authorized requester to pay a $5.00 fee for a certified
copy—a product which is not being requested, nor wanted.” MCS also complains
that R.C. 149.43 and 4501.34 and the DPPA, “when read together, mandate
disclosure of the unredacted records to MCS.”
{¶ 29} Contrary to MCS’s position, the Public Records Act is not immune
from R.C. 1.51. The federal and state DPPAs prohibit the BMV from disclosing
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personal information except under specific circumstances, and the General
Assembly is permitted to establish an exception or partial exception to the Public
Records Act to accommodate that law. The General Assembly chose to do that in
R.C. 4501.27, and it chose to permit the BMV to promulgate rules that specify a
procedure for qualified requesters to obtain information as long as the requester
pays a fee and states which exception to the ban on disclosure applies. Under
R.C. 1.51, these specific provisions cannot be overcome by the more general
provisions of the Public Records Act. Rather, the opposite is true: the specific
prevails over the general. Ohio Adm.Code 4501:1-12-02(D)(2) allows the BMV
to verify that the requester is qualified to receive the information and will follow
the nondisclosure rules in the statute.
{¶ 30} MCS appears to agree with the first two requirements of Ohio
Adm.Code 4501:1-12-02(D)(2), as it has filled out form BMV1173 for at least
one of its requests and identified the DPPA exception that applies. MCS’s main
objection seems to be to the $5 fee. But we have specifically held on more than
one occasion that the “at cost” provision of the Public Records Act is also
amenable to R.C. 1.51 and that a statutory provision for a specific fee is
considered an exception to the general “at cost” provision. State ex rel. Slagle v.
Rogers, 103 Ohio St.3d 89, 2004-Ohio-4354, 814 N.E.2d 55. In Slagle, we held
that the “at cost” provision of R.C. 149.43(B)(1) means “the actual cost of making
copies, ‘unless the cost is otherwise set by statute.’ ” Id. at ¶ 6, quoting State ex
rel. Warren Newspapers, Inc. v. Hutson, 70 Ohio St.3d 619, 625, 640 N.E.2d 174(1994). In Hutson, we cited 1989 Ohio Atty.Gen.Ops. No. 89-073 for the same
proposition. Moreover, Slagle cited another Attorney General Opinion, requested
by the relator in Slagle, which also held that when a specific statute establishes a
method for determining the amount a party must pay for a photocopy of a
transcript, that statute applies rather than the “at cost” provision in R.C. 149.43.
2002 Ohio Atty.Gen.Ops. No. 2002-014.
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{¶ 31} Thus, under Slagle and the precedent cited there, a specific statute
establishing a fee or a method for determining a fee for a requested public record
acts as an exception to the general “at cost” language in R.C. 149.43. Here, the
BMV permissibly set up a special procedure for the release of certain records,
together with a special provision requiring the payment of a specific fee for that
release. Under R.C. 1.51 and Slagle, these are special provisions that supersede
the general language of R.C. 149.43.
{¶ 32} Therefore, MCS cannot get an unredacted copy of the driver’s
record without applying for it under Ohio Adm.Code 4501:1-12-02(D)(2) by
completing form BMV1173 and by paying the $5 fee.
The BMV is not estopped from arguing that
Ohio Adm.Code 4501:1-12-02 is valid
{¶ 33} The doctrine of judicial estoppel prohibits a party from taking a
position inconsistent with one successfully and unequivocally asserted by the
same party in a prior proceeding. Greer-Burger v. Temesi, 116 Ohio St.3d 324,
2007-Ohio-6442, 879 N.E.2d 174, ¶ 25. MCS contends that the arguments made
by the DPS and the BMV in another case—Roth v. Guzman, 650 F.3d 603 (6th
Cir.2011)—estop them from making the arguments they make here. We disagree.
Roth is factually distinguishable and was decided based on federal law alone.
Moreover, at the time relevant to the facts in Roth, Ohio Adm.Code 4501:1-12-02
did not contain the two options now found in sections (D)(1) and (D)(2). 2000-
2001 Ohio Monthly Record 58. Finally, the arguments made there by the BMV
are not at odds with the arguments made here.
{¶ 34} The issue in Roth was whether the DPS director and the BMV
registrar had qualified immunity under the federal DPPA for their disclosure of
personal information in bulk to a company, Shadowsoft, Inc. Shadowsoft had
applied for personal information of Ohio drivers in bulk, asserting that it had a
legitimate reason for the information, and signed an agreement that it would use
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the information in conformity with all applicable laws governing personal
information. According to the plaintiffs in Roth, Shadowsoft later sold the entire
database to an entity that placed it on a public website, in contravention of the
DPPA. The plaintiffs—Ohio drivers whose personal information, as defined by
the federal DPPA, was posted on the website—sued the BMV and the DPS,
attempting to hold them liable for Shadowsoft’s improper use. Roth at 607-609.
Shadowsoft had apparently submitted form BMV1173 and apparently paid the fee
required at the time. Id. at 608.
{¶ 35} MCS contends that the DPS and the BMV in Roth argued that
when a requester fills out the proper forms, asserts that the disclosure is for a
proper purpose, and pays the proper fee, as Shadowsoft did, the BMV is required
to disclose under the Ohio Public Records Act. MCS claims that this argument is
inconsistent with the arguments made here. But MCS ignores the fact that Ohio
Adm.Code 4501:1-12-02 was amended after the events at issue in Roth to include
the two separate options in sections (D)(1) and (D)(2) and their related
requirements. 2000-2001 Ohio Monthly Record 58. Whatever might have been
the factual situation in Roth, MCS must comply with the rule as it exists now, and
BMV is not estopped from arguing that MCS must follow that rule.
Motor Carrier Service is not entitled to an award of attorney fees
{¶ 36} Because MCS’s public-records mandamus claim lacks merit, it is
not entitled to an award of attorney fees. State ex rel. Dawson v. Bloom–Carroll
Local School Dist., 131 Ohio St.3d 10, 2011-Ohio-6009, 959 N.E.2d 524, ¶ 34.
Conclusion
{¶ 37} MCS cannot get an unredacted copy of an employee’s driving
record without applying for it under Ohio Adm.Code 4501:1-12-02(D)(2) by
completing form BMV1173 and by paying the $5 fee. We affirm the judgment of
the Tenth District Court of Appeals in case No. 2012-1264 and deny the writ in
case No. 2012-1394.
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Judgment accordingly.
O’CONNOR, C.J., and PFEIFER, O’DONNELL, LANZINGER, KENNEDY, and
O’NEILL, JJ., concur.
FRENCH, J., not participating.
__________________
Vorys, Sater, Seymour & Pease, L.L.P., Lisa Pierce Reisz, Kenneth J.
Rubin, and Thomas E. Szykowny, for relator in case No. 2012-1394 and appellant
in case No. 2012-1264.
Michael DeWine, Attorney General, and William J. Cole and Hillary R.
Damaser, Assistant Attorneys General, for respondents in case No. 2012-1394
and appellees in case No. 2012-1264.
______________________
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