The following lawsuit against Undersheriff Andy Zinke was filed in Federal District Court today by Sondra Matterness:
Now comes the Plaintiff, SONDRA MATTERNESS, by and through her attorney, Robert T. Hanlon, of The Law Offices of ROBERT T. HANLON AND ASSOCIATES, P.C., complaining of the Defendant, Andrew Zinke (hereinafter “ZINKE”) of Woodstock, Illinois and state as follows:
NATURE OF ACTIONS
1. This Complaint contains one count. Count One is an action arising under the Drivers Privacy Protection Act of 1994, 18 U.S.C. § 2721 et seq., (“DPPA”) and seeks a monetary remedy against Defendant for unlawfully obtaining, disclosing and using personal information from motor vehicle records in the amount of statutory minimum damages of $2,500 for each act whereby the Defendant has unlawfully obtained, disclosed or used personal information from motor vehicle records, other damages for compensable injuries to Plaintiff, attorney fees and costs, and relief under this Court’s equitable powers to remedy Defendant’s, violations of the Drivers Privacy Protection Act, 18 U.S.C. § 2721 et seq., as it relates to Plaintiff.
JURISDICTION, VENUE & PARTIES
2. This Court has jurisdiction to hear Count I because the claim arises under a federal statute and this Court has jurisdiction pursuant to the DPPA, 18 U.S.C. § 2724(a) (conferring jurisdiction on the United States District Courts for actions under the DPPA, 18 U.S.C. § 2721 et seq.) and 28 U.S.C. §1331 (Federal question jurisdiction).
3. Venue is proper in the Northern District of Illinois because, amongst other things, a substantial part of the events or omissions giving rise to the claims occurred, and acts of Defendants relating to the cause of action set forth herein took place in this District and the Defendant maintains its principal office in this District and regularly conducts its activities in this District.
4. The Plaintiff is 78 years of age with a bad hip and resides in Woodstock, McHenry County, Illinois within the Western Division of the Northern District of Illinois.
5. The Defendant, ZINKE, resides in Woodstock, McHenry County, Illinois within the Western Division of the Northern District of Illinois.
6. A substantial portion of the events giving rise to these claims occurred in the Northern District of Illinois and in particular in McHenry County. Venue is, therefore, properly placed in this Court pursuant to 28 U.S.C. § 1391.
7. At all times relevant to this complaint, Zinke was an employee of the McHenry County Sheriff’s Office and holds the position of “Undersheriff”.
8. On January 13, 2014 a subpoena was served upon Zinke for testimony in a deposition to take place in Woodstock, Illinois. Even though Zinke was fully aware of the manner of civil process, at the time of service, Zinke refused to accept an envelope containing a subpoena. Rather, in response to the option to leave it at his feet or simply receive the paper, Zinke preferred it be left at his feet, and so the legal papers were left at his feet. Zinke upon opening the envelope began yelling and screamed in response to being served with a simple subpoena. Furthermore, Zinke in a indignant rage raced into the street in his stocking feet and approached Plaintiff’s automobile positioning himself in front of Plaintiff’s Vehicle. While standing in front of Plaintiff’s automobile Zinke stared at the front license plate of Plaintiff’s car and thereupon made note of the license plate. The approximate air temperature at the time of the occurrence was 25 degrees F.
9. Zinke still in his socks then prevented Plaintiff’s automobile from leaving the place it was situated in the street despite a complete lack of knowledge of any wrongdoing as he was standing directly within inches of the front of Plaintiff’s automobile in his socks for a period of approximately 2 minutes. Ultimately, Zinke yielded and strutted back to his residence within the City of Woodstock.
10. Upon information and belief, Zinke thereafter ran Plaintiff’s license plate or caused the license plate of Plaintiff’s vehicle to be ran through the Illinois State Police Law Enforcement Agencies Database System (“LEADS”).
11. Upon information and belief, after Plaintiff’s license plate was ran, ZINKE obtained, used, or disclosed the personal information of the Plaintiff.
12. Thereafter, Zinke moved to quash the subpoena and the McHenry County Circuit Court denied the motion of Zinke to quash. The Circuit Court ordered the deposition for March 7, 2014.
13. Upon information and belief, Zinke has received training on the appropriate use of LEADS including the prohibition against misuse of LEADS.
14. Upon information and belief, Zinke’s use of LEADS to obtain the personal information of Plaintiff was done with willful and wanton disregard of the prohibitions set forth in the DPPA.
Violation of the Drivers Privacy Protection Act, 18 U.S.C. § 2721 et seq
15. Plaintiffs, restate and re-allege the allegations of paragraphs 1-12 as if fully set out herein in this Count I.
16. This action arises under a federal statute and this Court has jurisdiction pursuant to the DPPA, 18 U.S.C. § 2724(a) (conferring jurisdiction on the United States District Courts for actions under the DPPA) and 28 U.S.C. §1331 (Federal question jurisdiction). This is an action pursuant to the Driver Privacy Protection Act, 18 U.S.C. § 2721 et seq. (the “DPPA”). Plaintiffs bring this action on her own behalf and on behalf of all similarly situated individuals whose “personal information” is contained in any “motor vehicle record” maintained by the State of Illinois within the meaning of the DPPA, 18 U.S.C. § 2725 (1) and (3), who have not provided “express consent” within the meaning of the DPPA, 18 U.S.C. § 2725 (5) to the State of Illinois for the distribution of their “personal information” for purposes not enumerated in the DPPA, 18 U.S.C. § 2721(b), and whose “personal information” has been knowingly obtained or used by Defendants within the meaning of the DPPA, 18 U.S.C. § 2724, for purposes not authorized by the DPPA.
17. The DPPA was enacted as part of omnibus crime legislation passed by Congress in 1993, known as the Violent Crime Control and Law Enforcement Act of 1993, in part to provide privacy protections to individuals’ personal information and highly restricted personal information as a result, in part, of several well publicized incidents in which criminals had used publicly available motor vehicle records to identify and stalk their victims. Those incidents included:
a. the murder of actress Rebecca Schaeffer in California by a man who had obtained Schaeffer’s address from California’s Department of Motor Vehicles;
b. home invasion robberies by a gang of Iowa teenagers who identified their victims by copying the license plate numbers of expensive automobiles and used those license plate numbers to obtain the addresses of the vehicle owners from the Iowa Department of Transportation; and the Arizona murder of a woman whose home address identified the Arizona Department of Motor Vehicles.
18. As originally enacted in 1993, the DPPA made it unlawful for any person or organization to disclose or obtain personal information derived from any motor vehicle record, unless the subject of the information had authorized such disclosure or the request/disclosure qualified under a recognized exception, including use by a federal or state agency, use in connection with motor vehicle and driver safety, use in court proceedings, use in certain research activities relating to certain insurance matters and use for verification of personal information submitted by the subject of such information. Use of personal information for marketing activities was permitted, so long as the States had provided individuals identified in motor vehicle records with the opportunity to prohibit such disclosures. This “Opt Out” provision effectively gave the individuals the right to prohibit the States from disclosing personal information for marketing purposes. 18 U.S.C. §2721 (1993).
19. Congress significantly amended the DPPA in 1999 by eliminating the “opt out” provision for marketing activities. Use or obtaining of personal information contained in motor vehicle records for surveys, marketing or solicitations was thereafter permitted only if the State obtained the express consent of the person to whom such information pertained. Similarly, a requester of personal information was allowed to obtain such information for any purpose, if the requestor demonstrated he or she had obtained the express consent of the person to whom such personal information pertained. 18 U.S.C. 2721 (b)(13), (14) (1999). By changing the “opt out” exceptions of the 1993 to an “opt in” exception in the 1999 DPPA amendments, Congress significantly reduced the categories of persons whose personal information may be lawfully obtained under the Act. The effective date of the 1999 amendments to the DPPA was June 1, 2000.
20. Under the DPPA a “person” who knowingly obtains, uses or discloses “personal information” concerning another from a motor vehicle record for a purpose not permitted by the DPPA shall be liable to the individual to whom the information pertains. 18 U.S.C. § 2724. The DPPA provides for liquidated damages in the amount of $2,500.00 for each violation of the DPPA, reasonable attorney fees and costs, in addition to Punitive damages upon a showing of a willful or reckless disregard of the law, and other relief including preliminary and equitable relief. 18 U.S.C. §2724(b). A “person” under the DPPA is defined as “an individual, organization or entity, but does not include a state or agency thereof.” 18 U.S.C. §2721(2).
21. Under the DPPA it is unlawful for a “person” to make false representations to obtain any personal information from an individual’s motor vehicle record. 18 U.S.C. §2722(b).
22. The Drivers Privacy Protection Act, 18 U.S.C. § 2721, defines the term “personal information” as:
Information that 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 does not include information on vehicular accidents, driving violations, and driver’s status.
23. Upon information and belief, the Plaintiffs allege all of the following facts and circumstances through the end of the Complaint, which facts and circumstances give rise to the claims made in this Complaint.
24. Defendant has obtained, disclosed and used personal information from motor vehicle records relating to Plaintiff, for purposes not permitted under the DPPA, including but not limited to the following:
a. Defendant, either directly or via direction to others accessed the Illinois State Police LAW ENFORCEMENT AGENCIES DATA SYSTEM known as “LEADS” and ran Plaintiff’s license plate related to the motor vehicle records associated with Plaintiff’s license plate.
b. Zinke obtained the personal information as that term is defined in the DPPA, from Motor vehicle records for the Plaintiff’s vehicle and other vehicles registered in Illinois in violation of the Drivers Privacy Protection Act, 18 U.S.C. § 2721 et seq, including, but not limited to the make, year, Vehicle Identification Number, Owner’s Name, Address, Zip code, and Driver’s License Number (which contains a code for dates of birth and other personally identifying information) from the motor vehicle records maintained by the Illinois State Police.
c. The plaintiff has not expressly consented to the release of her personal information from a motor vehicle record as required by the DPPA.
25. Defendants have obtained personal information, as defined in the DPPA, related to plaintiffs without obtaining the written consent of any such person for purposes not authorized.
26. From and before January 13, 2014 to the date of the filing of this Complaint, Plaintiff has been a resident of the Northern District of Illinois and an owner of vehicles registered in the State of Illinois and holders of Illinois Drivers licenses, each constituting a “motor vehicle operators permit,” referenced in the DPPA, 18 U.S.C. § 2725(1). Plaintiff is and has also been the owner and operator of automobiles registered in Illinois, for which there is a “motor vehicle title” and “Motor vehicle registration,” referenced in the DPPA, 18 U.S.C. §2725(1). Plaintiff’s Illinois Drivers License, motor vehicle title and motor vehicle registration all contain “personal information” concerning Plaintiff, within the meaning of the DPPA, 18 U.S.C. §2725(3). These records disclose, among other things, Plaintiff’s name, address and drivers license numbers.
27. After the effective date of the 1999 amendment to the DPPA (June 1, 2000), Defendant unlawfully obtained “personal information” of Plaintiff, including the named Plaintiff, from the Illinois Secretary of State’s “motor vehicle records” in violation of the DPPA, via the Illinois LEADS systems.
28. Defendants’ violations of the DPPA have been committed “knowingly” within the meaning of the DPPA 18 U.S.C. §2724(b). In the context of the DPPA, to act knowingly is to act with the knowledge of the facts that constitute the offense. See Bryan v. United States, 524 U.S. 184, 193, 118 S.Ct. 1939, 1946 (1998) (“Unless the text of the statute dictates a different result, the term knowingly merely requires proof of knowledge of the facts that constitute the offense.”) Defendants know that each obtained personal information pertaining to individuals from the Illinois Secretary of States’ records for purposes not authorized by the DPPA.
29. The information obtained by the Defendants from “motor vehicle records” contains “personal information” within the meaning of the DPPA, 18 U.S.C. §2725(3). Defendants obtained, disclosed and/or used such information for purposes not authorized by the DPPA. Each record of “personal information” knowingly obtained, disclosed and used for unauthorized purposes from motor vehicle records is a separate and distinct violation of the DPPA, remediable under DPPA, 18 USC §2724.
30. The defendant continues to use personal information from “motor vehicle records” he previously obtained in violation of the DPPA to identify Plaintiff and others.
Wherefore, Plaintiff demands judgment on her behalf to the following effect:
A. Granting judgment in favor of Plaintiff against Defendant in the amount of $2,500 for each instance in which the defendant obtained, disclosed or used personal information concerning the Plaintiff for purposes not authorized by the DPPA;
B. Punitive damages as provided in the DPPA;
C. Attorney fees and costs incurred;
D. Exercise the courts general equitable powers to require Defendant to destroy any and all “personal information” obtained from “motor vehicle records” related to Plaintiff.
E. Such other relief as the court deems appropriate.
By: /s/Robert T. Hanlon
Robert T. Hanlon, Plaintiff’s Attorney