Virginia Lawyers Weekly VA Lawyers Weekly
Tort
Where a high school resource officer obtained the pictures of a terminated employee and her husband from the DMV so they could be recognized by security officers if they returned to campus, there was no violation of the Driver’s Privacy Protection Act because the photos were used to carry out the law enforcement function of maintaining school safety.
Background
James Island Charter High School, or JICHS, terminated Kristina McMichael when it eliminated the finance department. At JICHS’s principal’s request, Officer Brown arranged for continued security to prevent any retaliation by former employees against the school. Brown obtained photos of Kristina and her husband from the South Carolina DMV so security officers could recognize them if they returned to campus uninvited.
The McMichaels sued: (1) Brown, JICHS and the City of Charleston for violating the federal Driver’s Privacy Protection Act; (2) JICHS for defamation and (3) Brown, JICHS and the city for invasion of privacy. The district court granted summary judgment to the defendants.
Driver’s Privacy Protection Act
The act states that drivers’ “[p]ersonal information” “may be disclosed . . . [f]or 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.”
The court agrees with the district court’s conclusion that maintaining public and school safety is a valid law enforcement function that justifies access to DMV records. And the court agrees that Officer Brown’s actions constituted a “use” of the DMV photos to “carry out” the law enforcement function of maintaining school safety.
The McMichaels appear to assert that the district court should have discounted Brown’s testimony based on a years-old, unrelated disciplinary action against him for entering a civilian’s room without permission or a warrant. Brown’s disciplinary history doesn’t help the McMichaels. The McMichaels also claim that the district court viewed as less credible Celeste Monette’s testimony that Brown didn’t act to ensure the school’s safety. But even taking Celeste’s testimony at face value, it doesn’t create a factual dispute.
Defamation
To the extent the McMichaels argue that JICHS’s termination letter addressed to Kristina was defamatory, their argument fails because that letter doesn’t state that Kristina is unfit for her profession—it says that the school has eliminated her position for budgetary reasons. Moreover, there’s no evidence in the record to suggest that JICHS’s stated reason for terminating Kristina was untrue.
While Officer Brown escorted Kristina off campus when JICHS terminated her, there’s no admissible evidence that her former colleagues thought that JICHS did so because of any criminal or unlawful conduct. To the contrary, Kristina’s termination letter plainly states that JICHS eliminated her position for budgetary reasons, and the district court properly ruled inadmissible the McMichaels’ hearsay evidence about her former colleagues’ opinions of her termination.
To the extent that the McMichaels claim that Brown’s placement of their photos on the security desk was a defamatory “statement,” it would not be defamation per se because its meaning is far from obvious. Even if it could mean that JICHS thought that Kristina was unfit for her profession, it could also mean any number of other things, including what the JICHS argues it means: that security officers simply needed the McMichaels’ pictures to identify them in the future. Nor did the combination of JICHS’s termination letter and Brown’s actions constitute defamation through insinuation.
Invasion of privacy
The elements of a claim for wrongful publicizing are: “(1) publicizing, (2) absent any waiver or privilege, (3) private matters in which the public has no legitimate concern, (4) so as to bring shame or humiliation to a person of ordinary sensibilities.” The district court determined that the McMichaels didn’t demonstrate a genuine issue of material fact as to the first element. This court agrees.
The fact that a few people saw the DMV photos doesn’t mean that the defendants publicized any of the McMichaels’ private information. That group is simply too small to give rise to a claim for wrongful publicizing. Nor did Brown wrongfully publicize the McMichaels’ private information by placing their DMV photos on a desk in the security office where passersby could view them.
Affirmed.
McMichael v. James Island Charter High School, Appeal No. 19-1880, Dec. 31, 2020. 4th Cir. (Diaz), from DSC at Charleston (Gergel). William E. Hopkins Jr. and Joseph C. Hopkins for Appellants. Christopher T. Dorsel, Jonathan J. Anderson and Jonathan L. Anderson for Appellees. VLW 020-2-340. 22 pp.
